Learn: LS 246 Exam 1 -UAB

four primary sources of US laws?

constitutional, statutory, administrative, case law/common law doctrines

laws establish

rights, duties, and privleges

U.S. Constitution is the

supreme law of the land

Statutory law includes

federal/state legislation, local ordinances, and uniform laws

Admin. law includes

federal/state agenies

Case law and common law doctrines include

court rulings

King's courts used

precedent

what established common law tradition?

King's courts

practice of deciding new cases based on precedent

stare decisis

higher court's decision is a _____ on lower courts

precedent (binding authority)

can you depart from precedent?

yes when changes in values of society

remedies ______ a right or _____ for injury

enforce; compensate

remedies restricted to money or property

remedies at law

remedies based on justice and fair dealing; when remedy at law inadequate

remedies in equity

types of remedies in equity

specific performance like injunction (order to stop) or rescission (cancel a contract)

most courts today can award remedies

inadequate

equitable principles and maxims include

laches and statues of limitations

a statue of limitation is the

time limit for court action

laws that define and regulate rights and duties

substantive law

laws that establish methods for enforcing and protecting rights

procedural law

private rights and duties

civil law

public wrongs against society

criminal law

laws of a particular nation

national law

laws of observed nations

international law

where to find statutory or admin law?

USC, state codes, admin rules (CFR)

where to find case law?

regional/national reporters like West Group

a case citation includes

parties, where case is found, who decided

law comes from the

majority (dissent)

methods of alternative dispute resolution

negotiation, mediation, arbitration

process by which a court decides on constitutionality of legislative enactments

judicial review

requirements to enter court

jurisdiction, venue, standing to sue

jurisdiction is the

power of court to decide a matter (golden ticket)

types of jurisdiction

in personam (power over person), in rem (power over property)

property can be

real, personal, tangible, or intangible

additional in rem

long arm statutes, corporate contacts

jurisdiction over subject matter include

limited jurisdiction (probate/bankruptcy), general jurisdiction (state trial)

original vs appellate

where case starts and to hear an appeal

jurisdiction of federal courts

federal question (fed. law) and diversity (bias)

most appropriate physical location for the trial, where injury occured

venue

party has suffered a legal injury

standing to sue

highest state court

decision is final

appellate courts can

affirm, modify, reverse

appellate courts include

no new trial, no witnesses, only briefs

to go to U.S. Supreme Court must have rule of

four (four of 9 want to hear case, can reject/accept w/o reason)

litigation process

pleadings, pre-trial motions, discovery, pre-trial conference, jury selection, trial, post-trial motions, appeal

pleadings include

plaintiff complaint, service/summons, defendant's answer (dismiss/counterclaim)

pre-trial motions

motion for judgment on the pleadings, motion for summary judgment

discovery includes

depositions, evidence, electronic discovery

trial includes

opening arguments, plaintiff's case in chief, direct verdict, defense, closing arguments

pre-trial motions include

motion for j.n.o.v., new trial

alternate dispute resolutions settle

90% and cheaper

informal discussion of parties, non-binding

negotiation

neutral 3rd party, talks face-to-face with parties, proposes a solution, fewer rules, med. fees, non-ninding

mediation

neutral 3rd party, legally-binding decision, expert or gov. official

arbitration

arbitrators do not have to follow

precedent, rules of procedure, or evidence

legal does not =

ethical

how to make good ethical decision?

justify, evaluate, discuss, decide, inquiry

types of ethical approaches

duty based (religious), outcome based (C/B analysis)

___________ goals may lead to unethical behavior

unreasonable

codes and whistles

codes of conduct, sarbanes-oxley, little white box

grease payments =

speed up fees ok

structure of U.S. government

legislative, executive, judicial

legislative branch

writes laws (president veto, judicial review)

executive branch

enforces laws (senate approves treaties, supreme ct. uncon.)

judicial branch

declares law/action unconstitutional (fed judges appt. by pres. with senate approval)

biggest power of constitution for business

commerce clause

applies to virtually all commercial transactions

commerce clause

national government has exclusive power to regulate interstate commerce

dormant power clause

is state or fed law invalid if direct conflict arises?

state

when congress chooses to act exclusively in a concurrent area (grey area)

preemption

1st Amendment

Freedom of speech, religion

freedom of speech is not

absolute

exceptions to freedom of speech

content-neutral (can't say here), combating social problem, content-specific

unprotected speech includes

defamatory, threatening, fighting words, obscene

prohibits government for establishing a state-sponsored religion

establishment clause

person's right to freely exercise their religion

free exercise clause

right to a fair trial

due process 5th/14th

types of due process

procedural (notice and fair hearing), substantive (content of right, ex. marriage)

gov must treat similarly situated indiv. in the same manner

equal protection 14th

equal protection tests include

strict/intermediate scrutiny, rational basis

federal admin agencies created through

enabling legislation by congress

powers of congress to create fed. agencies

delegation doctrine

agency powers and the constitution

executive (veto), legislation (give/take away power), judicial (can be appealed)

courts may review agency decisions only after

standing to sue and exhaustion doctrine (all admin. remedies)

agency action upheld unless

arbitrary or capricious

test for arbitrary or capricious

fail to provide explanation, changed policy, inappropriate factors, failed to consider relevant factor, contrary decision to evidence

APA has the power of

rule making, investigating, adjudicating

APA rulemaking follows the

notice and comment, no radical changes in final rule

APA investigating includes

conduct tests, issue subpoenas, ad testificandum (to testify), duces tecum (hand-it-over),

problems with APA

harassment, relevance of info., specificity of demand, burden

APA adjudication

resolution of dispute with admin. law judge (ALJ), mini trial, negotiate settlements, formal complaints

ALJ is

unbiased

process of admin. adjudication

hearing, agency orders, initial (no appeal) or final (appeal

agencies have ___________ to _________ their own agency rules

great discretion; interpret

principle of administrative law requiring courts to defer to interpretations of statutes made by those government agencies charged with enforcing them, unless such interpretations are unreasonable

chevron deference

in order for agencies to be assured chevron deference they must meet formal legal standards for

notice and comment rule-making

agencies are more accountable due to

freedom of info. act, gov in the sunshine act, regulatory flexibility act, small busn. regulatory act

freedom of info act

fed. gov must disclose certain records to any person on request

gov. in the sunshine act

every portion of every agency meeting open to public observation

regulatory flexibility act

analysis of cost a agency regulation will impose on small business, less burdensome alternatives (cost/benefit analysis)