MGMT 311 EXAM 1

Law

enforceable rules governing relationships among individuals and between individuals and their society

-rules and regulations

sources of law

1. Constitutions

2. Statutes (acts)

3. Administrative rules/regulations

4. Common Law

   1. Case Law

   2. Judge Made Law

Constitutions

establishes organization, powers, and limits of governments

US constitution

• Supreme Law of the land (basis and foundation)

• creates national government

• 10th amendment: reserves all powers not granted to federal government to states (limits power of federal government to give to state)

State Constitutions

• Create state governments

• highest form of law within the borders of that state

• subject to US Constitution

Statutory Law

• acts of congress

• Created by Congress and state legislatures

  • Federal: not always superior in all areas

    • applied to whole US nation

  • State: only within state borders

    • State legislative: 2 Houses- Senate + House of Representatives)

• Found in federal and state code of laws

• cannot violate constitutional law (state or federal)

• Municipal/County Government (local gov)

  • enact ordinances, which govern matters not covered by state or federal law

    • pass own ordinances (noise regulation, zoning, curfews)

  • ordinances cannot violate US or state constitutions

• Uniform Laws

  • State legislatures may reject or adopt uniform laws

  • if adopted, the law becomes part of state statutory law

  • UCC: most accepted uniform law

ex: Civil Rights Act

UCC

Uniform commercial code: most accepted form of law

-commercial sale contracts (most states)

Adminstrative law

from administrative agencies

• ex; FDA, FCC, OSHA, IRS (executive agency)

• Agency Functions

  • rule making

  • investigation and enforcement (enforce fines with unfit)

  • judge violations of the law

• Federal Agencies

  • executive agencies- executive branch (president and cabinet)

  • independent regulatory agencies

Common law

Judge made law

• English ancestry: root 1066- women invasion, inconsistency in law system

  • entire judicial system based on English common law

Courts at law/ Remedies at law

• Early Courts: king’s court

• Legal Remedies

  • money = damages

  • Compensatory damages

    • Special Damages

    • General damages

  • Punitive/exemplary damages

  • Nominal damages

Remedy

solution to a case, what does winning party receive

Compensatory damages

make party who brought the case to be whole again

• Special Damages: Quantifiable, out of pocket losses, have documentation to prove my loss

  • loss of time

  • loss of money

  • property damages

• General Damages: Open to Interpretation, Not Quantifiable

  • Pain and suffering

  • Injury to reputation

  • mental anguish

  • disfigurement

  • loss of earning capacity

Example of Special Damages- Compensatory Damages

Car accident

• you: injured party

• loss of time: missing work

• loss of money: money paid out due to accident

• property damages: item damaged

Example of General Damages -Compensatory Damages

• ex: Car accident

• pain and suffering; scale of pain —> money amount

• injury to reputation

• mental anguish: emotional pain and suffering

• disfigurement: lost leg, burns,….

• loss of earning capacity: ability to earn money in future, project over your lifetime

Legal remedies/ Remedies at law

• Compensatory Damages

  • Special Damages

  • General Damages

• Punitive Damages

• Nominal Damages

Punitive/exemplary damages

not possible in every case

• unusual cases

  • compensatory + ___ (on top, icing in cake)

• amount of money, hurts defendant to have to pay

• purpose: punish wrongdoer

• given in addition to compensatory damages

used to send message, make sure it hurt enough that no one wants to be responsible for in future

ex: car accident, no ___

ex: malpractice case

• ordinary case: no ___ on doctor

• case: suregon and performed surgery drunk and without standard of care

Nominal damages

• small, $5, $1

• wants: judge to say “shame on you”/ “we won case”/ “other party committed wrong”

• defendant: does not really need to be compensated by money

• why and how: jury believes not worth money (rare), when plantiff asks (no asks + no receive)

Courts at Equity/ Remedies at Equity

Money: not proper solution

• Early Courts: Chancellor court

• Types

  • Specific Performance

  • Injunction

    • temporary

    • permanet

  • Recession

equitable remedies

only available if legal remedies (money damages) are legally inadequate

Specific performance

Court order requiring a breaching party to perform as promised

-contract

-equitable remedies

-unique/irreplaceable item in contract

-land/property

example of specific performance- equitable remedies

seller and buyer (house)

• price agreed and deal

• seller: does not close for some reason

• buyer: wants to force deal (does not want $, wants the house)

injunction

• court order directing someone to perform/stop performing an action

• Temporary: prior to actual litigation

  • start at temp. —> can become permanent

    • start with court order

  • disposition not heard: both parties have not given input

  • end of temp. period —→ court has to have hearing/trial

    • 2 options: injunction over OR could become permanent

• Permanent: after litigation

  • can be appealed

  • 2 parties

example of injunction- remedies at law

restraining order

equitable maxims

equitable ideas that GUIDE judges as they decide cases

ex: Statues of Limitations

-in statutory law

statures of limitations

idea that people who have legal claims against them should not be forever worried when this lawsuit is going to be filed against them
(time limits on cause of action)

civil cause of action

• breach of contract

• negligence

• ex: car accident

  • injured party has 2 years from the day of accident to file lawsuit

criminal causes of action

• theft

• murder

• except capital murder: death penalty

Doctrine of Stare Decisis

“to stand on decided cases:

• William the conqueror

• to guide judges

• judges obligated to follow precedents established by higher parts in their jurisdiction

• use of “precedent”

  • consistency

  • fairness

precedent

similar past cases to decide on cases

functions of Stare Decisis Doctrine

• efficiency: no need to reinvent and rethink in each case

• uniform: same treatment

• law stable and predictable: law is not static and unchanging, nothing absolute in law

• use lessons learned in past

Binding precedent

if obligated (“bound by it”) onto lower courts

-higher courts precedent lower courts

Persuasive Precedent

• prior similar case (from another jurisdiction)

• is precedent from a court above in question, where they are required to follow or not

  • if not: part of civil case but NOT obligated to

ex: decision out of NY that may be beneficial in a case in TX

CANNOT argue how NY case can be precedent to TX trial

-can try and argue as ____, court may allow

change precedent

higher courts can overrule precedent

-keep appealing up to higher court

Departures from Precedent

• if prior ruling was incorrect

• outdated: tech/processes change

Plessy v. Ferguson

• Separate but equal

• distinction in race seating (1896)

• originally binding precedent over Brown

Brown v. Board of Education

• Brown wants to go better white school

• wins case against segregation

• overruled Plessy

Dobbs v. Jackson Women’s Health

• overruled Roe V. Wade

• returned the issue of whether abortions are constitutional

• now back to states to decide

Cases of first impression

no precedent case and no binding precedent

• factors used when court is faced with case of __ or when conflicting precedents exist

  • persuasive precedents: still similar prior case, look in other jurisdictions

  • legal principles and policies underlying previous decisions and statues

  • social values and customs

  • public policy: ideas good for society as a whole

  • fairness

  • legal reasoning and social science data

Legal Reasoning (types)

IRAC (Issue, rule, application, and conclusion)

• what are the key facts and issues?

• what rules of law apply to this case?

• how do the rules of law apply to the particular facts of this case?

• what conclusion should be drawn?

no one right answer sometimes

• good arguments can be made on both sides

• laws can be flexibly interpreted

• personal beliefs and moral philosophies play a role

common law today

judges hear cases, they write things, they decide to win

• restatements of the law: compilations of common law roles

classification of law

• many ways to organize law

• not mutually exclusive; they overlap

• common systems

  • sustantive v. procedural

  • public v. private

    • parties in case

  • civil v. criminal

substantive law

describe and define our rights

procedural law

method of enforcing your rights (diff for civil vs criminal)

Public law

government: party to the case

ex: IRS after your company for payroll tax issues

• you vs. government: TAMU (public university) infringed upon freedom of speech

• suing ___ entity

private law

• no government as paty

• two parties

Civil Law

rights + duties between people and companies

OR

between people and government

ex:

• car accident

• breach of house contract

• ppl vs. companies

• freedom of speech

Name of parties

• (π) Plaintiff: brings case

• (Δ) Defendant: party getting sued

Main purpose

• compensation

Burden of Proof

• “By a preponderance of the evidence”

  • a little more likely than not

  • who: has the burden to prove the case

  • how much: proof needs to be provided

  • plaintiff: often times carries the burden of proof

Criminal Law

wrongs committed against public as a whole

Names of Parties

• gov: bringing case against accused party of crime

• defendant: party accused

Purpose:

• punishment

Burden of Proof

• state/gov. must prove case

• “behind a reasonable doubt”

example of criminal and civil case

OJ Simpson vs. State of CA

• Simpson: accused of x2 homicide

• criminal case

• found not guilty, does not mean he did not do it

  • state could not prove he did it beyond a reasonable doubt

Sued again: OJ Simpson vs. Father of Ron Goldman

• wrongful death case

• looking for $, compensation

• Civil case: one citizen seeking compensation

can be civil and criminal case: under different circumstances

Double jeopardy: cannot be charged for same crime x2

• diff situations and diff cases and diff outcomes and parties

example of criminal case

Drunk driver and kills someone in head on collision and free the scene

• hit and run

• DWI

• Wrongs against society, not worried about victim

• no point of civil case when defendant has no money

trial court

• Plaintiff: person who filed sued, listed first

• Defendant: person being sued, listed second

• some cases where party suing is not asking for damages (ex: family law)

  • parties referred to as “petitioner” and “respondent”

appellate court

may reverse order of names in title if defendant loses in trial court and then appeals

• Appellant: party appealing (lost at trial court)

  • loser can go appeal at trial court

• Appellee: party who won at trial and defends against the appeal

  • responds to appeal and won trial court

high court

may switch order of names again if appellee loses in court of appeals

• Petitioner: party appealing to the high court

• Respondent: won at court of appeals level and defends against petition to supreme court

Reviewing courts

Courts of appeal and High Courts

• go over info from below

• issue opinions

• panel of judges

opinions issued by reviewing (appellate/high courts)

• Unanimous

• Majority

• Concurring Opinion

• Dissenting Opinion

Unanimous

everyone on panel agrees with who wins and why

• very strong precedent out of US Supreme Court

Majority

majority of panel agrees who and why wins

• gives winner

Concurring Opinion

Same outcome (who wins) and different reasons why

• allow ideas on how to expand precedent

Dissenting Opinion

• justice with own statement opinion

• disagreeing with majority

• show how things are being done wrong in those justice’s mind

Constitutional Powers of Government

• Federal Form of Government

  • Federalism: our gov. is a partnership between national gov. and state gov.

• Power: divided between national gov. and state gov.

• Partnership

Constitution

• laws governing business have origins

• basis of government

• sets limits of governmental actions

Regulatory Power of States

• Sovereignty: power to govern themselves stems from the 10th amendment

• Police Powers: right of state governments to regulate private activities to protect or promote the public order, health, safety, morals, and the general welfare

Relations among the states

• Privileges and Immunities Clause

• Full Faith and Credit Clause

• Commerce Clause

Privileges and Immunities Clause

if citizens of one state engage in BASIC AND ESSENTIAL activities in another state (“foreign state”), they must be treated the same as citizens of the foreign state unless the foreign state has a SUBSTANTIAL REASON for treating nonresidents differently from its own residents and the reason for the discrimination is substantially related to the foreign state’s purpose in adopting the legislation

• basic and essential activity

  • having access to jobs (ability to earn $)

  • having access to housing

• substantial reason

  • Strong reason (not strongest)

example of privileges and immunities clause

Shrimp fisherman

• shrimp to earn living

• TX citizen

• goes to LA to seek a fishing license to engage in his work

  • LA discovers him as non-resident

  • charges $2500 for fishing

  • if LA resident: $25 same license

    • Unconstitutional

    • rights violated

• basic and essential activity

• No substantial reason

Not an example of Privileges and Immunities Clause

In-state/out-state tuition: does not violate

• getting college education

  • NOT basic and essential activity

• Difference of charge

  • residents contributed to tax base

Full Faith and Credit Clause

• applied to only civil matters

• rights established under deeds, wills, and contracts will be honored in other states

• each state will recognize the public acts/records and judicial proceedings of other states

example of Full Faith and Credit Clause

Will- distribution of assets and property when dead

• written in TX

• moved to another state

• new state will recognize TX draft of will

example of Full Faith and Credit Clause

plaintiff from TX (civil lawsuit)

• won $1 million

defendant from NY

• defendant not paying

plaintiff can go to his homestead and use judgement of TX court to be able to enforce the judgement in the home state of the defendant

• other states will recognize TX judgement

Separation of Powerrs

between 3 branches of government with checks and balances

• legislative branch: make laws

• judicial branch: judges violations of laws

• executive branch: enforce laws

Commerce Clause

gives federal government the power to regulate movement of goods across states

• regulates commerce with foreign nations and between states

• federal power

• Expansion of Federal Power

  • Gibbons v. Ogden

  • Wickard v. Filburn

  • Heart of Atlanta Motel v. US

• Today:

  • Gonzales v. Raich

Gibbons v. Ogden

federal government can regulate INTRAstate commerce if the commerce concerns more than one state

• INTRA: within one state

• commerce clause

Intra

within

inter

between multiple states

Wickard v. Filburn

Farmer’s crop production to be used wholly for consumption on his farm was subject to federal regulation because it affected interstate commerce

• Single farmer growing wheat for own family’s consumption

• federal gov had rules on crop rotation, irrigation, pesticides, and herbicides

• Supreme court: Farmer’s actions DO have and EFFECT on commerce

  • no matter how small

• argued that do not need to do what gov. said growing for personal

• Commerce Clause

Heart of Atlanta Motel v. US

small motel

• policy: African Americans cannot stay

  • did not want to change policy after civil rights act passed

  • GOV SUES THEM

  • argued constitutional issue, is a constitutional STATUE

  • argued if constitutional, they were not subject to it

    • location: major federal highway (small, local, do not affect commerce)

    • if denied stay due to race when traveling for business: affects ability to do business there

• US Court

  • does not matter size of operation

  • if engaging in discrimination or commerce

  • could have a great effect if behavior allowed

Right after CIVIL RIGHTS ACT

• passed under commerce clause power

• had rules about not letting people STAY or EAT at your establishment

  • due to race —→ affects commerce

Commerce Clause

Ruling: behavior unconstitutional

Gonzales V. Raich

Medical Marijuana and the Commerce Clause

• Supreme court allows the federal government to regulate noncommercial activities taking place wholly within a state’s borders

2 terminally ill women

• given prescription to grow marijuana for their pain

• arrested by federal regulators (FBI)

• argued: legal activity in my state

  • showed prescription

• Conflict of law: between state and federal

• Supreme Court

  • states are free to legalize this sort of activity

    • does not protect citizens of that state of prosecution under federal law

• Federal Controlled Substances Act

  • possession/use/distribution a federal crime

  • federal statue

• After Ruling

  • increase marijuana factories

  • Obama: executive order

    • stop enforcing federal controlled substances act in states with legal marijuana

Dormant Commerce Clause

states do not have the authority to regulate interstate commerce

• absent/silent

• written by states

• state regulations can affects interstate commerce but to determine if the commerce clause is violated by the state action

  • courts must BALANCE the STATE’S INTEREST in the purposed of the regulation against the burden placed on interstate commerce

    • Balancing test: potential for a state to win

    • looks at how big of an EFFECT do we have on interstate commerce from this state law

    • PURPOSE of state law

Raymond Motor Transportation Inc. Vs. Rice

Dormant Commerce Clause

Wisconsin regulating lengths of 18-wheelers

• if truck length > link: not allowed

Raymond Motor Transportations: truck company

• argued: all 50 states have diff links, have to do research, keep up with it

  • burdensome to have constantly change trucks

  • money

Rice: gov. representative from state of Wisconsin

• argued: more products, more weight,

  • gas emission s

  • damage to roads (state $)

  • safety of citizens

Court tries to balance both parties

-rules: unconstitutional

• too burdensome on interstate commerce

Supremacy Clause

US constitutional, laws, and treaties

• “supreme law of the land”

• preemps other laws

Preemption

• federal congress chooses to act exclusively

  • federal congress passes broad piece of legislation

    • say need to have a federal agency created to oversee this law (fed. gov. taking over)

    • in an area of law that could be viewed as CONCURRENT AREA

      • not clear in constitution who has power to handle this area (fed. or state)

    • ex: cigarette labeling

      • federal aviation law

• conflict present between state and federal laws

  • federal law controls state laws (preempts)

  • federal statue > constitutional provision (clauses

Taxing power

• Congress has power to tax, but must be uniform through the US

• Courts allow tax if it is a valid revenue raising measure

• States: free to do diff taxes

Spending power

• Congress pays debt and provides for defense and general welfare of US

• Rarely challenged- problem with standing- plaintiff must show a direct and immediate personal injury to challenge federal power

• Congress can spend revenues to promote any objectives it deems worthwhile

Bill of rights

• Originally applied to the federal government

  • rights to be enjoyed from federal government

• most, but not all, have been incorporated to states through 14th amendment

  • after 14th amendment: made rights applicable to state

• US supreme court is final interpreter of the Constitution

• NOT absolute rights

  • ex: 4th amendment

    • prohibits unreasonable searches and seizures

    • does not mean: never will have property searched

1st amendment

Freedom of Speech/Expression (speech, press, assembly)

• Verbal

• Non-verbal

Symbolic Speech (non-verbal expressions)

• gestures, movements, articles of clothing

• voice opinions

• engaging in social media (like and comment)

• boycott

• protests

Principle Function

• invite dispute

• may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger

• I may disapprove of what you day, but I would defend to the death your rights to say it

1st time: an article of clothing set a message

• Black Arm bands: protest Vietnam War

Texas V. Johnson

Texas V. Johnson

• Flag burning

• Challenged 1st amendment

• demonstrates strength of our freedom

• our freedom > symbol of the greatest nation

Johnson

• burned flag in peaceful protest

• mad at government

• argues: Texas Flag Protection Law

  • violation of freedom of speech

Texas

• had a law at the time, to burn American Flag: crime

Ruling;

• Johnson won the case

• flag burning: violation of constitutional right (freedom of speech)

Classifying cases with constitutional law

• Always public

  • W/ constitutional violation

  • gov is a party

• Civil or criminal

  • dependent on situation

Reasonable Restrictions

expression- oral, written, or symbolized by conduct

• subject to

• balancing of rights of citizens vs. government’s duty to protect citizens

• on a case by case basis the courts strive to balance on our rights vs. gov.’s job

• Content neutral

Content Neutral Restrictions

• time/place/manner restrictions

• content neutral and if reasonable: always reasonable

• must serve a compelling state/ government interest

  • Compelling reason: strongest reason among standards

• controlling when and where of expression

  • NOT: what, expression itself

Reasonable restrictions

laws that restrict content of speech must serve a compelling state interest and be narrowly written to achieve that interest

ex: “Bong Hits 4 Jesus” case

Bong Hits 4 Jesus case

reasonable restrictions

• Parade: 5 kids hold up banner “Bong hits 4 Jesus”

• all but 1 kid takes sign down: high school student expelled

• argued: not able to expel, use of freedom of speech

Court

• as HS student: diminished right of freedom of speech

• schools: had vested (good) reason for controlling certain speech, protecting minor

Commercial Speech

speech and communication made by businesses

• mainly advertising and labeling

• protection is there, but not to the degree as normal (noncommercial speech)

business arguing that a city ordinance/state law is interfering with their message

• when challenged

  • 3 part test: Must be dealing w/ something that is protected speech, speech lawful, not misleading

  • restrictions/laws affecting/controlling ____ will be upheld when challenged if:

• restriction is constitutional

  • the law (restriction) seeks to implement substantial government interest- “reasonable fit” between governmental interest in limiting speech and the restriction chosen to accomplish the objective

  • the law directly advances that interest

  • law goes no further than necessary to accomplish the objective (law is narrowly crafted)

• restrictions on Billboards

• states: protect consumers from misleading advertisements

  • beautiful roads and things that are not distracting driving on sides of the road

  
  

• Bad Frog Brewery, Inc. v. New York State Liquor Authority

substantial

immunity clause

Bad Frog Brewery, Inc. v. New York State Liquor Authority

Bad Frog: bullfrog flipping off consumers

• denied to sell products in NY: against law

• argues: law violates rights

New York State Liquor Authority

• lewd and obscene vulgarities: not allowed on label

3 part test

1. Substantial governmental interest (passed): protect minors from vulgarity

2. direct advancement (failed): court ruled-banning one frog label does not have that great of effect

   1. does almost nothing to solve the states’s boarder concern

3. Reasonable fit (failed): gov. cannot completely ban an advertisement if there is a softer way to fix the problem

unprotected speech

in relation to not an absolute right

• could get arrested, sued for

• Defamation (see Torts)

• Lewd and Obscene Speech

• Threatening speech

Defamation

• unprotected speech

• cannot defend lies with constitution

• civil cause of action

• telling LIES behind someone’s reputation

• slander

Lewd and Obscene Speech

• unprotected speech

• differences amongst the states/within a state

  • TX and OK: crime to flip off an officer

• Supreme Court has difficulty defining this

• left to local standards

• Child pornography is completely banned

Threatening speech

• unprotected speech

• fighting words

• case in 2018:

  • when is it ____ or fighting?

  • when does it cross the line?

  • individual threatening police on Youtube Video

Freedom of religion

1st amendment

• establishment clause

  • ex: cross on public lands

• free exercise clause

  • ex: Native American tribe and affordable care act (obamacare)

  • Kennedy v. Bremerton School District

establishment clause

• first amendment

• freedom of religion

• want citizens to be free from gov. establishing religion

• prohibits city level gov. from showing preference to one religion

• prohibits: passing laws promoting one religion over

• federal or state regulation can have an impact on religion as long as it does not place a SIGNIFICANT BURDEN on religion

• 1st amendment does not require a complete separation of church and state

  • for the mandate to ACCOMMODATE things

  • by 1st amendment: not to show hostility towards one thing

ex: Cross on Public Lands

• war memorial

• CA

• group of Jewish war veterans

  • argues: promotes Christianity

  • one faith over another

Free Exercise Clause

• 1st amendment

• Freedom of Religion

• cannot be compelled to do something contrary to our religious beliefs

• if law is contrary to a person’s religious beliefs, exemptions are often made to accommodate those beliefs

• if religious beliefs work against public policy and welfare, the government can act

ex: Native American Tribe

• Religious ceremony: smoke hallucinogenic plant

  • peyote

• Controlled Substance: criminal to be in possession with

• Religious Experience: exception if they are having religious ceremonies on tribal lands

• against public policy/welfare: peyote in public

ex: Affordable Care Act (Obamacare)

• Contraceptive opt out paperwork

• businesses that felt like things they had to certify and explain on this paperwork violated religious believes

• given:

  • exception to opt out

Kennedy v. Bremerton School District

• Couch taking a knee during football fame

• said personal prayer

• did for 7 years and no one complained

• never invited players to join (they asked “Can be join”)

• sent Cease and Assist order from district supervisors

  • will stop religious practices after games

  • given private room in locker room to continue praying

• fired, sues, coach wins case

• rights not equal

  • one is more important

  • free exercise clause and establishment clause

    • do not battle and go against each other

1st amendment clauses

• establishment: gov cannot set up/favor an official state legislation

• free exercise: gov cannot stop you from practicing your own religion