BLAW 301 KU Exam 1

Constitutions

made by the people; supreme law of jurisdiction, within

that jurisdiction's limitations; forms and limits the gov of the jurisdiction

Statutes

made by legislatures; enacted by congress, subject to

presidential veto; federal slip and session laws get bundled up into the United States Code

Regulations

made by agencies; congress delegates its power to agencies,

which make detailed regulations; collected in the Code of Federal

Regulation

Case Law

made by judges; the precedents courts create when they

resolve cases and controversies; can effectively overturn or rewrite

statutes and regulations

Federal Source of Law

constitution, statutes, treaties, common law (qualified),

regulatory law, executive orders

State Source of Law

constitution, statutes, common law (general), regulatory law,

executive orders, municipal law, ordinance

Hierarchy of Law

federal constitution, federal statutes,

federal regulations, state constitutions, state statutes, state regulations, andfederal and state case law

Criminal Actions

when the government itself is processing you; imprisonment

Tort

when you sue someone for the action of doing something to you; fine only

breaches of contract

money fine only; enforcing the carrying out of a contract

statutory/regulatory violations

just a violation not a crime; failing to register

vehicle on time; fine; no jail

Federalism

A system in which power is divided between the national and state governments

Supremacy Clause

Federal law is supreme over state law

Preemption

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

Commerce Clause

Clause stating that Congress can regulate interstate and international commerce.

First Ammendment Rights

speech, press, religion, assembly, and petition

commercial speech

Advertisements and commercials for products and services; they receive less First Amendment protection, primarily to discourage false and misleading ads.

Political Speech

government has the burden of showing

the restriction is necessary to the fulfillment of a

compelling governmental purpose, and is the least

restrictive means of doing so

overbreadth doctrine

A principle used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity. This doctrine may be utilized to protect constitutional rights, such as freedom of speech, against a wide sweep of some governmental action.

Prior Restraint Doctrine

Legal doctrine that gives individuals the right to publish without prior restraint- that is, without first submitting material to a government censor

Takings Clause

Government can take private property for a public purpose, but it must provide fair compensation to the owners of that property. Inherited but limited by the 5th amendment

eminent domain

the right of a government or its agent to expropriate private property for public use, with payment of compensation.

Birthright Citizenship

Under the 14th Amendment, anyone born in the U.S. is automatically a U.S. citizen.

Procedural Due Process

procedural laws that protect the rights of individuals who must deal with the legal system

incorporation doctrine

The legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the Fourteenth Amendment.

Equal Protection Clause

14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination

Strict Scrutiny

A heightened standard of review used by the Supreme Court to determine the constitutional validity of a challenged practice.

Intermediate Scrutiny

a test used by the Supreme Court in gender discrimination cases that places the burden of proof partially on the government and partially on the challengers to show that the law in question is unconstitutional

Rational Basis

A Supreme Court test to see if a policy uses reasonable means to achieve a legitimate government goal

Protected classes under Title VII

race, color, religion, sex, national origin -- cannot be sole reasoning in a case.

Amendment III (three)

outlaws the quartering, or housing, of soldiers in private houses

the third amendment prohibits is practice

Amendment IV (four)

the government must have a search warrant to search your property

it protects us from being wrongly accused or searched

Amendment VI (six)

guaranteed to a fast, fair, and public trial

protects the rights of being accused

Amendment VII (seven)

Right to trial by jury

Amendment VIII (eight)

cruel and unusual punishment

Amendment IX (nine)

protects others rights that have not been listed in the constitution

Amendment X

Rights reserved to the states

Sole Proprietorship

-creation: automatic

-continuity: continues until proprietor terminates

-control: proprietor has absolute control

-liability: proprietor has unlimited liability

-taxation: proprietor pays person income tax

Partnership

-creation: automatic when two or more people with a common interest in a

business share profits and losses

-continuity: dissolution whenever partners chage; this doesn't necessarily

terminate the business

-control: by default, partners share control

-liability: partners are jointly and severally liable for the partnership's debt

and liabilities

-taxation: partners pay personal income tax

limited partnership

-creation: must file with the Secretary of State

-continuity: dissolves on change of general partners

-control: only general partners have control

-liability: general partners are liable for partnership's obligations; limited

partners are only liable for their own

-taxation: partners pay personal income tax

Limited liability partnership

-creation: must file with Secretary of State

-continuity: by default, partners may assign their interests

-control: by default, partners share control

-liability: partners NOT liable for partnership debts and liabilities

-taxation: partners pay personal income tax on their share of partnership

income

Limited liability corporation

-creation: must file with Secretary of State; must have Articles of

Organization

-continuity: perpetual

-control: by default, members share control

-liability: members NOT liable for the LLC's debts and liabilities

-taxation: partners pay personal income tax, OR the LLC can elect

corporate taxation

Corporation Creation

-Articles of Incorporation: filed with Secretary of State; must

include corporate name, purpose, powers and duration

-Bylaws: not mandatory in every state; can't contradict the articles

of incorporation

Common Shares

voting rights; paid dividends last

Preferred Shares

no voting rights; paid dividends first

Duties shareholders owe each other

-controlling shareholders have a duty of "intrinsic fairness"

to minority shareholders and can't completely freeze them

out

Relationship between shareholders and directors

shareholders elect the directors

Duty of Care

-must "act with the care that a person in a ike position

would reasonably believe appropriate under similar

circumstances"

Duty of Loyalty

-must "act in a manner that the director reasonably believes

is in the best interests of the corporation"

liability

shareholders and directors USUALLY not personally

liable for the corporation's debts and legal liabilities

Veil Piercing

make shareholder's personally liable for the corporation's debts and liabilities, would only be seen in closely held companies

passthrough taxation

method in which business owners pay income tax on the basis of an organization's earnings rather than the business (sole proprietorships and partnerships pay through this method)

corporate income tax

The tax a corporation pays on its profits

information return

-A tax return filed with the IRS that says how much money

you made

-anti fraud measure basically

Nonprofits

-Don't have to be corporations but they often are

-exempt from the corporate income tax

-Can't pay dividends to shareholders, all money must return to the mission

-mission must fit legal requirements

S corporation

-Works like a corporation but taxed like a partnership (passthrough

taxation)

-specific requirements

Actual Authority

refers to specific powers, expressly conferred by a

principal to an agent to act on the principal's behalf

Implied Authority

refers to an agent with the jurisdiction to perform acts

which are reasonably necessary to accomplish the purpose of an

organization.

Apparent Authority

refers to a situation where a reasonable third party

would understand that an agent as the authority to act

Ratifacation

a principal's approval of an act and its agent that lacked the

authority to bind the principal legally.

Disclosed Principal

refers to a principal whose identity is revealed to a

third party by an agent

Undisclosed Principal

a person who uses an agent for negotiations with

a third party who has no knowledge of the identity of the agent's principal.

Direct Liability

-the principal did something directly that makes them liable

Respondeat Superior

A doctrine under which a principal or an employer is held liable for the wrongful acts committed by agents or employees while acting within the course and scope of their agency or employment.

joint liability

denotes the obligation of two or more partners to pay back

a debt or be responsible for satisfying a liability; allows parties to share the risks associated with taking on debt and to protect themselves in the event of lawsuits

Several Liability

when a party is responsible for their own obligation