legal studies midterm exam

Relativism

the belief that a harmful act is ‘right’ if the perpetrator claims it is ‘right,’ but what is right and what is wrong is not always relative. ex: “do as the romans do” in reference to feeding criminals to lions

implicit bias

Unconscious attitudes or stereotypes that influence our understanding, actions, and decisions, often without our awareness. It can affect how we perceive and interact with others, leading to unintentional discrimination or unfair treatment.

conformity bias

The tendency to adjust one's beliefs or behaviors to align with the group or societal norms, even if it goes against one's own judgment or values. It can lead to individuals suppressing their own thoughts and opinions to fit in or avoid conflict.

attribution

The act of giving credit to the original source of information or ideas used in a piece of work.

attribution error

Attribution Error: The tendency to attribute others' behavior to internal factors (personality, character) rather than external factors (situational factors, circumstances).

tangible/intangible

describes how we react more to vivid, immediate inputs than to ones removed in time and space, meaning we can pay insufficient attention to the adverse consequences our actions have on others. example: more affected/moved by circumstances affecting our friends and family than millions of people we don’t personally know

framing

context for a situation, reframing of a situation ex: 75% fat free vs 25% fat.

model of corporate social responsibility

Framework outlining a company's commitment to address social and environmental issues. It consists of four levels: economic, legal, ethical, and philanthropic responsibilities. A company should strive to fulfill these responsibilities to achieve sustainable and socially beneficial outcomes.

business ethics associated with CSR

economic (required), legal (required), ethical (expected), discretionary (desired)

three examples of ethical theories

Utilitarianism, Kantian Ethics (Rights theory), Rawlsian Moral Theory (Distributive Justice)

Utilitarianism (Utility theory)

Ethical theory that focuses on maximizing overall happiness and minimizing suffering. Actions are morally right if they produce the greatest amount of happiness for the greatest number of people. Considers consequences and promotes the greatest utility or benefit for society as a whole. The focus is on the decision that produces the best possible balance of good and bad consequences for the affected primary stakeholders.

Kantian Ethics (Rights theory)

• The focus is not violating any primary stakeholder's legal and/or moral rights

• To establish legal and moral rights

  • One must demonstrate that the law establishes a stakeholder's legal right

  • One must show for an ethical right to exist that, the moral right passes the following tests

o   Universal: means a person's reasons for acting must be reasons everyone could act on, at least in principle.

o   Reversible: means a person's reasons for acting must be reasons they would be willing to have all others use, even as a basis of how they treat them.

o   Means vs. End: involves a person's reason for acting is to treat people as an end in and of themselves and not as a means to an end.

Rawlsian Moral theory (distributive justice)

The focus is on the concept that equal distribution of benefits and burdens is the norm for primary stakeholders. Still, if that distribution is impossible (almost always the case), the decision must benefit the least advantaged primary stakeholders.

Corporate Social Responsiveness

does the business have the capacity to meet its identified responsibilities? (organization, money, talent, systems)

Corporate Social Performance

a measure set of measures of whether you achieved your identified social responsibilities

Code of ethics

is a document outlining the mission and values of the business or organization, how employees are supposed to approach problems, the ethical principles based on the organization's core values, and the standards to which employees are held.

Integrity-based management

companies establish a broad set of values and then allow employees the freedom to manage to those stated values.

constitutional law

foundation for all other law in the united states and is the supreme law of the land. functions in tandem with other sources of law in three broad areas 1. establishing a structure for federal and state governments including qualifications for certain offices and positions, setting rules for amending the constitution and granting specific enumerated powers to the different branches of government 2. establishing the concept of federalism, allowing the federal and state governments shared powers, 3. establishing individual civil rights and providing procedural protections for U.S. citizens from wrongful government actions.

enumerated powers

article I section 8, of the U.S. constitution names 17 specific powers granted to the federal government.

constitutional issues that impact businesses :

Congress’s powers to regulate interstate commerce, the creation of legal protections for intellectual property (copyrights and patents), the protection of certain forms of commercial speech from unwarranted government regulations, limitations on a state’s authority to tax products/services in commerce, and powers of the executive, legislative, and judicial branches to regulate business activity.

ordinances

written laws at the local level, regulate issues such as zoning or impose health and safety regulations on local merchants such as restaurants.

statues/statutory law

written laws that are passed by the federal or state legislature and then either approved or rejected by the executive branch (U.S. congress).

common law

law made by courts

the doctrine of stare decisis

the principle that similar cases with similar facts and issues should have similar judicial outcomes.

precedent

created when an appellate court renders a decision. should a similar fact situation occur later, all lower courts, such as trial courts, are bound to follow the appellate court’s decision as long as no new statutory law has been enacted.

administrative law

the source of law that authorizes the exercise of authority by executive branch agencies and independent government agencies. example: the U.S. Environmental Protection Agency (EPA) is charged with drafting regulations that carry out the broad mandates set by congress in the clean air act to reduce air pollution.

Hierarchy of Primary sources of federal and state law

1. U.S. Constitution 2. federal statues and international agreements (such as a treaty) 3. federal administrative law 4. federal common law 5. state constitution 6. state statutory law 7. state administrative law 8. state common law (as set out by state appellate courts)

Criminal law Vs. Civil Law

civil law: designed to compensate parties for losses as a result of another’s conduct. losses as known as damages.

criminal law: designed to protect society, and the violation of criminal laws result in penalties to the violator such as fines or imprisonment.

Substantive Law VS. Procedural Law

Substantive law:provide individuals with rights and create certain duties

procedural law: provide a structure and set out rules for pursuing substantive rights.

Law Vs. Equity

law = remedies and money damages

equity = equitable relief ex: restraining order, maxwell with the old man and the sea example

when a remedy at law is inadequate (getting money), an injured party may also obtain a remedy at equity. when a remedy at law is fully sufficient to bring justice, equitable remedies are not permitted.

Public Law VS. Private Law

public law: those derived from some government entity ex: statues (legislative/executive) and administrative regulates (state or federal administrative agencies)

private law: are recognized as binding between two parties even though no specific statute or regulation provides for the rights of the parties

constitution’s three general functions

1. it establishes a structure for the federal government; that is, it creates three coequal branches; the legislative, the executive, and the judicial

2. it delegates enumerated and limited powers to each coequal brand of the federal government

3. it provides procedural protections to citizens, persons, and business firms.

article I — Congressional Powers

article I section 8. Powers of congress that generally impact business are 1. the power to regulate commerce (commerce clause) 2. the power to tax and the power to spend government funds (tax and spend provisions) 3. the power to regulate bankruptcy, patents and copyrights. additionally, congress has a general implied power to make all laws necessary for carrying out its enumerated powers (necessary and proper clause)

Article II — Executive Powers

the president is the chief executive of the United States and the commander-in-chief of the armed forces. The executive powers that affect businesses include 1. the power to carry out laws made by Congress 2. the power to enter into treaties (subject to Senate approval) and carry out foreign policy 3. the power to appoint federal officers and judges (also subject to Senate approval)

Article III— Judicial Powers

decides cases and controversies that fall within its authority.

jurisdiction

the legal authority of a court to decide a case.

rational basis

lowest level or least amount of judicial review. in order for the court to uphold the action, the government need only show that 1. its action advanced a legitimate government objective (such as public welfare, health, or safety) and 2. the action was somehow related to the government’s objective. government actions that fall into this category include almost every economic regulation and tax related law.

intermediate level scrutiny

courts will uphold government actions as constitutional so long as the government can prove that 1. its action advances an important government objective (a higher level than the legitimate criterion used in rational basis tests ) and 2. the action is substantially related to the government’s objective.

Strict Scrutiny

when a government action impairs a fundamental constitutional right or is based on a “suspect” classification (i.e. race, national origin), courts apply this test. Courts will uphold the law only if 1. the governments objective is compelling, 2. the means chose by the government to advance the objective are necessary to achieve that compelling end and 3. no less restrictive alternatives exist

supremacy clause

Article VI of the U.S. Constitution provides that federal laws are always supreme to any conflicting state law

necessary and proper clause

congress may place conditions on the use of federal money by the states in order to achieve some national public policy objective. the power to tax the citizenry and spend the federal government’s money in any way that promotes the common defense and general welfare.

commerce clause

congress has the power to regulate 1. channels of interstate commerce such as railways and highways 2. the instrumentalities of interstate commerce such as vehicles used in shipping 3. the articles moving in interstate commerce 4. any activity that has substantial economic effect on interstate commerce including activities that are not commercial in nature

commercial speech

advertising, through print, television, radio, and the internet. partial first amendment protection as long as its truthful(i.e. is subject to intermediate level scrutiny’s )

corporate political speech

full first amendment protection. Subject to strict scrutiny

exclusionary rule

any evidence obtained in violation of the Fourth Amendment may be excluded from evidence in criminal prosecution.

due process

appears in the 5th and 14th amendment, which prohibits the government from depriving persons of their life, liberty, or property in an arbitrary way.

procedural due process

imposes certain procedural requirements on federal and state governments when they impair life, liberty, or property. procedural due process requires the government to give adequate notice, a fair and neutral hearing, and an opportunity to present evidence before any official action is taken that would deprive the life, liberty, or property of an individual or business firm.

substantive due process

limits the substantive police power of the states to restrict individual liberty. laws must be specific enough that a reasonable person would understand it.

equal protection clause

part of the 14th amendment and prohibits state governments from denying their citizens equal protection of the laws.

suspect classification

triggering strict scrutiny. any government action based on race or national origin or in cases where government is restricting the right to vote, access to the courts, or the right to travel from state to state.

semi-suspect (quasi-suspect) classifications

trigger so called intermediate strict scrutiny. courts used this intermediate standard of review when government actions are based on gender or birth status. economic or tax regulations are judged under rational basis standard.

judiciary

the American legal system is structured around a set of federal and state courts

primary roles of the judiciary

1. courts adjudicate cases — resolving disputes

2. charged with the responsibility of judicial review —- a court may review decisions of lower courts or the actions of the other branches of the government to determine whether these decisions and actions comply with existing law and the constitution

state courts

Adjudicates cases arising under state statutes, state common law, or state constitutional law. they also may apply nonexclusive federal statutes as well as federal constitutional law

federal courts

concerned primarily with national laws, federal constitutional issues, and other cases outside the purview of state courts.

state trial courts

courts that hear civilc cases, in which one party seeks a remedy, such as an award of money damages, for a private wrong committed by another party and courts that hear criminal cases, in which the accused party is charged by the government of committing a crime.

state appellate court

primarily concerned with reviewing the decisions of trial courts. main job is to determine whether a legal error was made at the trial court level. in cases where the error is substantial enough, a court may reverse the decision of the trial court and remand the case back to the trial court. this court also sets precedent that is binding on all lower trial courts.

trial courts at the federal level

U.S. district courts. address issues involving federal matters such as federal statues, regulations, or constitutional issues. federal district courts may also decide certain matters involving state law when the parties are from different states and the amount in controversy exceeds $75,000

federal appellate courts

U.S. Courts of appeal. reviews the decisions of federal district courts in the state or several states within its circuit.

U.S Supreme Court

has the authority to review the decisions of the circuit courts, review decisions of state supreme courts that involve some issue of federal law. has both original and appellate jurisdiction. the courts original jurisdiction is limited to cases involving ambassadors and other high profile officials and those cases where the disputing parties are two states. main work of this court is to decide cases presenting legal issues that have generated conflicting opinions among the appellate circuit courts referred to as a conflict among the circuits or a circuit split

jurisdiction

a court’s authority to decide a particular case based on 1. who the parties are and 2. the subject matter of the dispute

venue

is a determination of the most appropriate location for litigating a dispute

Origins of jurisdiction

found in the constitution, specifically, the Due Process Clause of the Fifth and Fourteenth amendment.

Jurisdiction two part analysis

a court must have both 1. subject matter jurisdiction and 2. Personal jurisdiction

subject matter jurisdiction

the court’s authority over the dispute between the parties

personal jurisdiction

is the court’s authority over the parties involved in the dispute

negligence

lack of care

in order for a federal court to have subject matter jurisdiction in a case … 3 options

1. issue must involved a federal question (some issue arising from the U.S. constitution, a federal statute or regulation, or a federal common law),

2. the united states is a party in the case (Ex: someone suing the IRS),

3. cases involving parties from two different states (known as diversity of citizenship, lastly another requirement for a diversity of citizenship case is that the amount in controversy is over $75,000

concurrent jurisdiction

when more than one court has jurisdiction over a dispute/case

in order for federal trial courts to have personal jurisdiction … 4 options

1. residents and business entities located in the state where the federal trial court sits

2. nonresidents with minimum contracts with the state in which the federal trial court sits

3. nonresidents owning property in the state in which the federal court sits

4. voluntary

in order for state trial courts to have personal jurisdiction … 4 options

1. residents and business entities located in the state

2. nonresidents owning property in the state

3. nonresidents with minimum contracts with the state according to state long-arm statue

4. Voluntary

in order for state trial courts to have subject matter jurisdiction… 1 option

1. state law matters (statues, common law, state constitutional issues)

civil litigation

refers to dispute resolution process of civil (noncriminal) cases in public courts of law.

class action lawsuit

one in which a group of people with the same or similar injuries sue for damages that were caused by the same defendant. Typically, this is centered on allegations of a defendant’s 1. illegal conduct such as discriminatory employment practices 2. involvement in an unlawful transaction such as consumer fraud 3. sale of a defective product such as a pharmaceutical drug or medical device

stages of litigation

1. prelawsuit phase — standing, statue of limitations, jurisdiction

2. pleadings stage— complaint and summons, answer, counterclaim, cross claim

3. motions

4. discovery stage

5. pretrial conference

6. trial phase

7. posttrial phase

prelawsuit phase

one party will typically make an informal demand of the other party in which the principals (or their attorneys) lay out the basics of the dispute and demand a certain action. usually leads to informal discussions directly between the parties without third party involvement.

standing

in order for one party (the plaintiff) to bring a civil lawsuit against another party(the defendant). the plaintiff must show three things 1. that she has suffered a harm or an injury in fact 2. that her hard is direct, concrete, and individualized 3. that there is an appropriate legal remedy to redress her harm

statue of limitations

the time limit within which a lawsuit must be filed or the a lawsuit will be barred forever. in most cases, the time limit begins when the plaintiff’s injury occurs

plaintiff

the party who initiates a lawsuit by filing a complaint in a court of law against one or more defendants, demanding some legal remedy from the court.

defendant

the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution. in some cases (such as divorce), the defendant may be called the respondent.

pleadings stage

if informal attempts at resolution fail, formal action begins when the plaintiff initiates a lawsuit by filing a complaint with the local clerk of courts. this filing of the complaint sets this stage in motion. the plaintiff is typically required to serve the defendant with a summons, along with a copy of the plaintiff’s complaint.

summons

a formal, written notification served to the defendant informing her that she has been named in a lawsuit and that she must file an answer within a certain period of time.

answer

a response to the plaintiffs complaint. responding to each paragraph of the complaint, a device for the parties to understand what issues they agree on and what issues will be in dispute at trial.

counterclaim

if a defendant believes that the plaintiff has caused her damages arising out of the very same set of facts as articulated in the complaint. this happens when the defendant submits her answer.

cross-claim

defendant may also file this to bring a third party into the litigation as a new defendant. this is filed when the defendant believes that a third party is either partially or fully liable for the damages that the plaintiff has suffered and therefore should be brought into the case as an indispensable party in the trial

motion

a legal document filed by one party requesting the court to take some action pertaining to the litigation.

discovery stage

once the initial pleadings are filed, this stage is where the parties collect evidence for trial. the legal process for the orderly exchange of evidence. each side has the right to know and examine the evidence that the other side has, including evidence that is both inculpatory and exculpatory. this is accomplished primarily by four methods: depositions, interrogatories, requests for admissions, and requests for production.

inculpatory evidence

evidence that tends to prove a criminal offense or civil wrong.

exculpatory evidence

evidence that tends to prove innocence or nonliability.

depositions

oral questions asked of either a party or a witness in the case. commonly taken in the setting of a conference room at a law firm.

Interrogatories

written questions submitted to the opposing party that must be answered in writing. only the actual parties to the litigation are required to answer these questions. Ex: student and teacher chalk dispute example

request for admissions

futhers the objective of determining which facts are in dispute and which facts both parties accept as true.

request for production

can be very wide in scope, so that such a request would cover all documents, memorandums, reports, notes, calanders, videotapes, audiotapes, e-mails, computer hard-drives, and so on relevant to the case at hand.

pretrial conference

several weeks before trial, parties will attend a meeting with the judge. the purpose of this meeting is to accomplish two objectives. primary reason is to encourage settlement. secondly, the court will resolve any outstanding motions, confirm that discovery is proceeding smoothly, and dispose of any procedural issues that have arisen during pleadings or discovery stage.

trial

generally takes place in front of a judge as the finder of law, with the jury as the finder of fact. the judge determines such important rulings as what evidence will be admitted, what witnesses may testify, what the jury will hear and not hear and even what legal arguments the attorneys may present to the jury. the jury determines whose version of the facts is more believable by examining the evidence and listening to the testimony of witnesses.

alternative dispute resolution (ADR)

refers to nonjudicial methods by which disputes involving individuals or businesses are resolved outside of the federal or state court system through the help of third parties. main methods include mediation and arbitration.

benefits of ADR

reductions in costs and time, the preservation of business relationships, the involvement of an expert neutral party, and privacy

informal ADR

often involves the parties negotiating face-to-face or through intermediaries to arrive at a mutually agreeable solution without the use of a formal process. can take the form of 1. a settlement agreement, whereby one party agrees to a payment in exchange for the other party’s promise not to sue 2. an agreement to cancel a contract or to revise an existing contract to better reflect the parties’ obligations and needs.

formal ADR

methods include arbitration, mediation, and expert evaluation.

arbitration

an individual arbitrator conducts a hearing between the parties in the dispute. the hearing is similar to a court setting but is less formal because there is no discovery and the rules of evidence do not apply.