MGMT 311 EXAM 1

What defines what is legally right and wrong and establishes the rules that govern society?

The Law

What does the law help establish?

- Sanctions and remedies for violations
- Provides confidence and predictability to individuals

What consist of written laws and court decisions?

Rules

What are the 4 sources of American Law?

- Constitutions (US and State)
- Statutory Laws (US, State, Local)
- Regulations (Created by admin agencies)
- Case Law / Common Law Doctrine (Federal / State Case Law)

What establish organizations, powers, limits of the government?

Constitutions

What is the Supreme Law of the Land under Article VI; creates the US Government; establishes State Rights through the 10th Amendment Reservation Clause?

US Constitution

What creates State Government; is the highest form of law within the state; still subject to US Constitution?

State Constitutions

What type of laws are enacted by legislative bodies?

Statutory Law

What are the 3 types of statutory laws?

- Federal Statutes (Found in Federal Code or US Code - USC Section)
- State Statutes (State Registry)
- Local / municipal (county, city, town - ordinances)

What can statutory laws NOT violate?

US or State Constitutions

What type of law are rules, orders, decisions, or decrees issued by administrative agencies?

Administrative Law

What type of administrative body answers to the President/Governor; ex.) US DOT and Texas Department of Transportation?

Executive Agencies

What type of administrative body answers generally to a board or commissioner appointed for a fixed term; ex.) SEC and FCC?

Regulatory Agencies

What type of law is old English Law that American Law is based on?

Common Law

What were the two general types of Law that Old English Law was based on?

- Courts of Law and Remedies at Law
- Courts of Equuity

What general type of law is for righting a wrong through damages or remedies (land, items, or money)?

Courts of Law and Remedies at Law

What general type of law is for justice and fair dealing; damages are unable (specific performance, injunction, recissioin)?

Courts of Equity

What type of remedy do courts today have jurisdiction or authority to grant?

BOTH Remedies and Equity

Who brings the action?

Plaintiff / Petitioner

Who is the party being sued?

Defendant / Respondent

What are defenses raised by respondent?

Laches

What are state laws that require civil cases to be brought before a certain deadline?

Statute of Limitations

What is the doctrine of precedent, under which a court must follow earlier decisions when the same facts/laws appear; "to stand on decided cases"?

Stare Decisis

What is a court decision that is considered controlling on either the facts or legal issue?

Legal Precedent

What is the power to make legal decisions and judgments?

Jurisdiction

What is the general principle of stare decisis?

Judges must follow precedent

What are the two main aspects of stare decisis?

- Courts should not overturn its precedent absent a really good reason to do so
- Decisions by higher courts are binding

Whose decisions are Binding Authority?

US Supreme Court

What are the exceptions to precedent?

- Ruling precent is simply wrong on the law or
- Social change have rendered the precedent inapplicable

What are some examples of deviations from precedent?

- Roe v Wade and Dobbs v. Jackson Woman's (14th Amendment Equal Protections Clause
- Brown v. Board of Ed. and Plessy v. Fergusson (Separate but Equal)

What are cases called when no binding precedent exists?

Cases of First Impression

What is the legal authority that courts look to for guidance?

Persuasive Authority

What are some examples of persuasive authority?

- Precedent from other jurisdictions
- Legal treatises
- Unrecorded decisions
- Law Review Article

What does IRAC Stand for?

Issue, Rule, Application, Conclusion

What stage of IRAC is determining what the case or controversy is about?

Issue

What stage of IRAC involves determining what legal standard or rule of law will apply?

Rule

What stage of IRAC is applying the rule of law to facts and circumstances giving rise to the controversy; lawyers and judges look to apply or distinguish previously decided?

Application

What stage of IRAC involves the decision?

Conclusion

What are things to consider in legal reasoning?

- Generally decisions are not black and white
- Laws/statutes can be flexibly interpreted
- Personal beliefs / moral philosophies can play a role

What classification of law defines and creates legal rights and obligations?

Substantive

What classification of law includes methods of enforcing the rights established?

Procedural

What classification of law addresses the relationship between person and govenrment?

Public

What classification of law addresses relationships between private entities?

Private

What is the burden of proof for criminal matters?

Beyond a reasonable doubt (85-90% sure)

What is the burden of proof for civil matters?

Simply weight if one side is at fault so it's more of a majority thing

What is the difference between civil and criminal law?

Civil - monetary damages
Criminal - sanctions like prisons or fines

What are new bodies of law that govern transactions over the internet?

Cyberlaw

How do you read the titles of trial court cases?

- Plaintiff/Petitioner is listed first
- Defendant/Respondent listed scond

How do you read the titles of appellate court cases?

Names may flip
- the Appellant is listed first (taking the appeal)
- The Appellee is listed second (victorious or defending party)

What outlines or explains the courts rationale for deciding the case in law and facts?

Written Opinions / Decisions

What type of decision is where all justices agree on the law and facts?

Unanimous decision

What type of decision outlines the rationale of the judges that decided the case?

Majority opinion

What type of decision outlines the rationale of the judges agreeing on the ultimate outcome but not the majority's legal reasoning?

Concurring Opinion

What type of decision outlines the rationale on why the justices disagree with the majority's opinion?

Dissenting Opinion

What type of decision is where the judges are unable to get a majority?

Plurality Opinion

What Amendment protects the "rights of the people to be secure in their persons, houses, papers, and effects"; better known as Search and Seizure?

4th Amendment

What is the legal authority to search or seize that law enforcement must have before searching or seizing property?

Search Warrant

What do search warrants require; trustworthy evidence that the search is justified; issued by a judge or a court?

Probable Cause

What did Terry v. Ohio (1968) give police officers the ability to do in regards to search and seizure; can do this to a suspect without PC if the officer has a reasonable suspicion that the person has committed or is committing or is about to commit a crime; also if officer has reasonable belief that the person "may be armed and dangerous?

Police officer may "stop and frisk"

What Amendment says that no person "shall be compelled in any criminal case to be a witness against himself"; cannot be forced to give testimony that might subject to a criminal proceeding; Miranda v. Arizona (1966)?

5th Amendment

What does the 5th Amendment only apply to?

- Federal and State Laws
- Only Natural persons / sole proprietors (not corporations or partnerships)

Why may the 5th Amendment be waived?

Individuals have the right to remain silent but not the ability

What provides for two types of Due Process prior to a taking (life, liberty, or property)?

5th and 14th Amendment

What type of Due Process requires prior notice and opportunity to be heard (ex. right to call witnesses; present evidence; right to appeal a decision; and right to be presented with exculpatory evidence)?

Procedural

What type of Due Process focuses on the content of the law rather than fairness?

Substantive

What is the standard of review for substantive due process for violations of fundamental rights?

Government must have a legitimate and compelling reason

What is the standard of review for substantive due process not involving fundamental rights?

Rationally relates to any legitimate governmental interest

What are some examples of fundamental rights that get brought up in due process cases?

Travel, marriage, family, privacy

What Amendment forbids the state form denying any person equal protection under the law; equal protection relates to substance of the law or action like substantive due process?

14th Amendment

What is the 3 standards used for equal protection cases?

Strict Scrutiny, Intermediate Scrutiny, and Rational Basis Test

What equal protection standard is applied when the law prohibits or inhibits some people from exercising fundamental rights; there must be a compelling governmental interest (ex. providing minority business preferential treatment for government contracts)?

Strict Scrutiny

What equal protection standard is applied in cases based upon gender; law must be substantially related to government objective; (ex. limiting beer sales to men under 21 but not women in Craig v. Boren)?

Intermediate Scrutinty

What equal protection standard is applied to cases involving social welfare of economics; is there a rational basis to a legitimate government interest; (ex. limiting certain businesses from selling alcohol)?

Rational Basis Test

What is NOT expressed in the Constitution?

Right to Privacy

What did Griswold v. Connecticut (US 1965) hold that led to several federal statutes and State Constitutions recognizing the right to privacy?

Right to privacy was implied in 1,3,4,5,9th Amendments

Who has enacted several statutes that protect individuals' personal information from government and private business (HIPAA - Health and FERPA - Education)?

Congress

What law did Congress and States pass that provides individuals access to information?

Freedom of Information Act

What is the US Law allowing more power to stop terrorist attacks; there have been several Constitutional challenges but no court has limited its power or authority?

US Patriot Act - Post 9/11

Who shares sovereign power through shared governance?

Federal and State Government

What are the State Police Powers NOT limited to; rights of states to regulate private activity for the good of society - health, safety, and security - delegated to local municipalities; states have very broad power to regulate?

Criminal laws

What Clause says that citizens in each state are entitled to enjoy the privileges and immunities of all the states; can NOT discriminate (property, employment, court system)?

Privileges and Immunities Clause (Article IV Section 2)

What are the exceptions to the Privileges and Immunities Clause?

- Foreign state must have a substantial reason for treating non-residents different (ex. college tuition, fees with hunting and fishing licenses, homestead exemption)

What are property tax breaks that in-state citizens get and alien citizens who own property in the state but live elsewhere are not given

Homestead exemption

What Clause says that every state will respect every other state's public acts, records and judicial proceedings (civil only); without this we would not be able to function as the UNITED states; (ex. deeds, wills, contracts, marriage licenses)?

Full Faith and Credit Clause

What is the importance of the full faith and credit clause?

It allows people and businesses to effectively and uniformly conduct business across state lines; protects people (protection orders and child custody issues)

Explain how US v. Alvarez is the perfect sample of Checks and Balances system in action?

- Congress passes Stolen Valor Act 2005 - Bush signs the law
- SCOTUS declared it unconstitutional in 2012 (violated free speech)
- President and Military established a national database for medal citations (verification system)
- Congress passes revised Stolen Valor Act that addresses deficiencies and defects and limited prohibition to situations involving fraud

What was enacted to prevent the states from enacting laws that would interfere or restrict trade and commerce among the states; says that Congress has the authority to "regulate commerce with foreign nations and among the states"?

Commerce Clause (Article 1 Section 8)

What did Gibbons v. Ogden (1824) rule in terms of interstate v. intrastate commerce?

States can regulate in areas that do NOT substantially affect interstate commerce

What did Wickard v. Filburn (1942) rule in terms of interstate v. intrastate commerce?

Individual farm (personal use) impacts interstate commerce

What is the impact of the commerce clause today?

Feds have jurisdiction over every commercial enterprise

What implies that state regulations of interstate commerce is very limited; balancing test between purpose v. burden on interstate commerce?

Dormant Commerce Clause

What Clause says that Federal law is the "Supreme Law of the Land"; state/local law may exceed Federal law but cannot supercede?

Supremacy Clause

Who has the explicit "power to lay and collect taxes, duties, etc..." in Article 1, Section 8; taxes must uniform; if reasonable - permissible under commerce clause?

Congress

What can Congress place stipulations on through its "power to pay debts and provide for the common defense and General Welfare of the US"?

Can place stipulations on its payment to States (ex. feds tried to enforce mandatory vaccinations for states to get certain funds)

What were adopted to protect "individuals" against government?

The Bill of Rights

What are considered "legal entities" or "legal persons" and as such are protected by the Bill of Rights and enjoy the same protections?

Corporations

What originally only applied to the Federal government but starting in the 1900s Courts starter applying the same principle to State Governments; today this applies equally to all forms/sources of government?

14th Amendment

What is essential to democratic form of government and courts have held this sacred; applies not only to spoken words but also gestures, movements, clothing?

Freedom of Speech

What have courts applied on Free Speech to balance individuals and society's rights; (ex. cannot yet fire in a crowded theater)?

Reasonable Restrictions

What must laws show that regulate contents of "speech"?

A compelling government interest