Business Law Lecture Notes Review

Flashcards for review based on lecture notes.

Rule of Law

The idea that the law applies to everyone in the same way.

Definition of Law

Rules established by the state and backed up by enforcement; formal social force. Adequate enforcement institutions are necessary to maintain order in society

Rule of Law video takeaways

Fairness, set of rules everyone abides by, accountable to the law, the rule of law affects our day to day activities even the smallest things, protection of minority rights.

Principles that define the rule of law according to the World Justice Project

Accountability; Clear, publicized, stable, & just laws; The process by which laws are enacted, administered, and enforced is accessible, fair, and efficient; and Justice that is delivered timely.

Property

A legal right that allows you to exclude others from your resources. (without this right, business comes to a standstill).

Importance of Exclusionary Right of Property

Exclusionary right of property provides a basis for the private market and modern business and Give incentive to develop resources owned.

Common Law

Emphasizes the role of judges in determining the meaning of the law and how they apply. The United States follows the Common Law, exception of 1 State: Louisiana.

Stare Decisis

Let the prior decision stand; Judges follow precedents whenever possible. Ensures certainty, stability, and predictability in the law.

Video Takeaway about Stare Decisis

Laws are both are wrong and harmful in order to change precedent

Civil Law

Relies more on legislation than judicial decisions to determine what the law is. Civil Law Courts (Judges) do NOT make law and DON’T feel obligated to follow prior judicial decisions.

Public Law

Regulation of society and Government represents society. Included Constitutional Law, administrative law and criminal law.

Private Law

Regulation of private resources, Defines rights and duties and provides the machinery for enforcing those rights and duties, Includes property law, contract law, and tort law .

Civil Law

Individual sues for damages (for money) or other appropriate relief (Sanctions? Damages). Examples: Breach of Contract or Tort Cases.

Criminal Law

Government brings suit to prove a wrong committed against society. Sanctions: Death, Imprisonment, Fines, Removal of office, Disqualification from voting or holding office. Examples: Robbery, Conspiracy, etc.

Substantive Law

Defines the legal relationship of people with others people between them and the state.

Procedural Law

Deals with the method and means by which substantive law is made and administered. Examples: the times allowed to sue someone, the rules of law governing the process of lawsuit

Federal Law Sources

U.S Constitution (Supreme law of the land), Legislation passed by Congress, and Administrative Law.

State Law Sources

State Constitution, Statutes or Acts adopted by the State Legislature (i.e Commercial Code (UCC)), Regulatory Law of the State Administrative, and Ordinances.

Precedent

A prior judicial decision relied upon as an example of a rule of law.

Citations

The reference identifying how to find a case.

Opinions

written decisions of judges; becomes precedent for future cases

Judges and Justices Description

Individuals who operate our courts are called Judges. Members of the U.S. Supreme Court are called Justices; 9 total justices.

Trial Court

Fact Finding is the body’s role and the Issues are of law and fact.

Choosing a Supreme Court Justice

President the power to appoint Federal Judges, including the US supreme court justices, subject to the advice and consent of U.S. Senate.

Trial Court Judges

role is to Determine the applicable rules of law to be used to decide the case, Observe, Apply constitutional limitations and guarantees, Determine what evidence is admissible, and Find Facts (when a jury trial has been waived).

Appeal Court Judges/Justices

Decide an appeal and give reasons for their decisions. Spend time studying briefs, the record of proceedings, and the law in reaching decisions. Have to consider how their decision will affect the law as a whole and Becomes precedent.

Jury Duty Eligibility in Georgia

To be eligible for Jury Duty in Georgia, you must: Be a US citizen; 18 years old; Be proficient in English enough to understand and discuss the case; Be a resident of the county that sent you the jury summons; Have not served on a jury in the last 12 months; Not currently be on a grand jury or on another trial jury; Not be under a conservatorship; Have had your civil rights restored if you were convicted of a felony.

Petit jury

Trial jury that returns a verdict in criminal and civil situations.

PETIT JURY

recent Supreme Court Case states the decision must be unanimous in serious criminal cases (Ramos v. Louisiana).

Lawyers Role

Serve as representative advocates in the court system

Jurisdiction

The power of the court (at the state or federal level) to hear a case and Power over the ISSUES involved in a case.

Lawyers duties

Present evidence, points, and arguments; help juries and judges in making decisions.

Lawyers duties

Primary duty is to the to the administration promotion of justice. Forbids a lawyer from revealing confidential facts and from testifying against a client. Extends to lawyer’s employees.

Subject Matter Jurisdiction

In order for any court to hear a case it must have subject matter jurisdiction.

General Jurisdiction

The power to hear ANY type of case.

Limited Jurisdiction

The power to hear only certain types of cases. Can be limited to subject matter, amount in controversy, or the area in which the parties live. May be named according to the subject matter with which they deal. Examples: Probate court, traffic court, juvenile.

State Courts Sources

Sources that create and govern State Court Systems: State Constitution; State Legislature; Other legislation.

State Trial Courts

Initial Court for filing lawsuits seeking to protect property rights or redress a wrongdoing. Can be referred to as Superior or Circuit or District Court. Responsible for determining the facts and law in the case.

Appellate Courts

Review the results of lower courts; Procedural law must be followed in order to be granted an appeal; Concerned with questions of law. Some states only have 1 appellate court (Supreme court) while others have two levels of reviewing courts (intermediate- Court of appeals and court of final resort- Supreme court)

Writ of certiorari

Procedure for requesting a Supreme Court review.

Article III of the Constitution

Gives jurisdiction to the Federal Courts to review: Questions of Federal law (Federal questions cases), Cases where the United States is a party, Controversies among the states, and Certain suits between citizens of different states (Diversity of citizenship)

Article III of the Constitution

Federal questions cases: U.S. Constitution issues and Federal statute issues; No $ Limit.

Diversity of Citizenship

Plaintiffs/Defendants are Citizens of different states: Each Claim must be for more than $75,000;Note, a corporation is a citizen of the state of state of incorporation and also a citizen of the state of its state of its prinmembers. Cannot have the same state on both sides of POB; Note, Diversity of Citizenship for a partnership is based on the citizenship of all of its members.

Purpose of Citizen Diversity

Guard against State Court Bias against the non-resident party.

District Courts

Trial courts of the federal judicial system; At least one court in every state and the District of Columbia; Federal Rules of Civil Procedure: Provide the details concerning procedures to be followed in federal court litigation.

13 Courts of Appeal

The Court of Appeals for the Federal Circuit hears appeals from Special courts and Administrative decisions. Other courts have been created to handle special subject matter (Court of Appeals for Armed forces).

Decisions by the U.S. Supreme Court

Review by the U.S. Supreme Court requires a petition for a writ of certiorari; Granted primarily in cases of substantial federal importance.

U.S. Supreme Court Decisions

The U.S. Supreme Court has the discretion as to whether or not it will grant the petition and allow another review. 4 out of the 9 Justices have to agree to take the case. More than 7,000 request for review are made each year. Final judgments of the highest state court are reviewed only by the US Supreme court (must involve a federal question).

Power of Judicial Review

Ultimate power of the courts to invalidate actions by the executive branch (President) or the legislative branch (congress). Announced in Marbury v Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is.”

Judicial Restraint

Judicial Review should not be used except in unusual cases; Follow precedent when possible; Also known as Strict construction or Judicial Abstention. Look to the original intent of the constitution. Belief that changes in society should result from the political process instead of court action. Dominant philosophy throughout history.

Judicial Activism

Judicial Review should be used when the needs of society justify its use. Believe that courts should play a major role in correcting societal ills; Believe the political process is too slow/not capable . Less reliance on precedent; Value oriented and policy directed; Belief that the meaning of the Constitution is relative to the times in which it’s being interpreted; 1950s/1960s U.S. Supreme court had an activist majority.

Civil Litigation

Process helps the business community, Costly, Time consuming.

Parties to a Lawsuit

Parties to a Lawsuit: Party that files a Lawsuit = plaintiff; Party who is sued = defendant; Defendant makes claims against the plaintiff = Countersuit / counterclaim; A defendant who was not named in the complaint but is later joined = Third party defendant

Standing to Sue Meaning

You are entitled to hear the case or dispute and decide it.

How a Plaintiff Establishes Standing to Sue

The Plaintiff must allege: A case or controversy (legal wrong) and A personal stake in the resolution, Plaintiff has to be the one that was wronged

Personal Jurisdiction

This action indicates voluntary submission to the court’s power and is the Authority over the parties to the case on the part of the court.

Personal Jurisdiction over the Plaintiff

Personal Jurisdiction over a plaintiff is obtained when the plaintiff files the suits.

Personal Jurisdiction over the Defendant

Personal Jurisdiction over the defendant is obtained by: Summons and Service of process.

Personal Jurisdiction over Out-of-State Defendant

How does a state obtain personal jurisdiction over a Defendant who is out of state? Long arm statutes provide for the service of process beyond the boundaries of the state.

Minimum Contacts Test

The defendant must have minimum contacts with the state - If answer is yes to any of these questions, we have satisfied the minimum contact requirement.

Long arm statutes

Only constitutional if they provide the defendant with due process of the law.

Minimum Contacts Test Questions

Has the defendant committed a tort within the state?; Does the defendant own property within the state that is the subject matter of the lawsuit?; and Has the defendant entered into a contract within the state or translated the business that is the subject matter of the lawsuit within that state?

Criminal Cases

The crime must have been committed within the state for the court to have jurisdiction over the case; Jurisdiction over the person of the defendant is obtained by arrest.

Class Action Suits

One or more plaintiffs file suit on their own behalf and other persons who may have a similar claim

Class Certification Requirements

To certify a class in a class action, suit the party seeking certification must demonstrate: The class is so numerous that joinder of all members is impracticable; There are questions of law or fact common to the class (commonality); The claims or defense of the representative parties are typical of the claims or defenses of the class AND the representative parties will fairly and adequately protect the interest of the class.

Pleadings Definition

Legal documents filed with court to begin litigation processes (short and plain statement of claim and evidence).

Complaint

Written statement of the plaintiff’s position and allegations.

Answer

Defendant’s response to plaintiffs position to complaint. Defendant will admit or deny each allegation (may contain counterclaim and affirmative defenses). Failure to respond could result in default judgement in favor of the plaintiff. Affirmative defenses are defense that will defeat plaintiffs’ claims.

Discovery Definition

Procedure by which one party obtains information relevant to the case from the other party or third persons. Dress rehearsal for party and allows them to learn about how witness will answer questions prior to trial. Saves money and finds out intentions of other party and case.

Standard for Discovery

Information sought must lead to evidence admissible during trial. Interrogatories, Request for production of document, depositions, request of admission

Interrogatories

Series of written questions presented to the opposing party.

Request for Production of Documents

Either party asking the other to produce specific documents.

Depositions

Lawyer orally asks questions of the possible witness or any other person involved in the case (this is recorded and a written transcript is prepared).

Request of Admission

When you are requesting the other side to admit that certain issues in original pleading are no longer in dispute (lead to settlement which save money from trial)

Abuse of Discovery

Imposes a tremendous burden on the judicial system. Must preserve all relevant data from being destroyed, altered, or mutilated. Failure to produce documents can lead to steep consequences (Morgan Stanley ordered to pay 3.3 million to investors).

Motion to Dismiss

Party makes written or verbal request that judge issue an order or ruling anytime in litigation process (Examples: Lack of jurisdiction, statute of limitation bars suit).

Motion for Summary Judgement

No general factual dispute exists and one party to the lawsuit is entitled to judgement as a matter of law. Here the judge looks at evidence and not just the pleading. Motion of summary judgment (based off evidence).

Voir Dire

Clerk summons prospective jurors (names are drawn at random). Jurors are called into the jury box and examined as to their qualifications and ability to be fair and impartial. Jurors may be excused for a specific reasons or cause (i.e. biased or related to a party) OR a peremptory challenge may be used.

VOIR DIRE

To speak the truth. Number of peremptory challenges can vary from court to court – not allowed to use the challenge on basis of race or gender.

Peremptory Challenge

No cause or reason needs to be given to excuse a prospective juror.

Motion for a Directed Verdict

Requests the judge to issue a ruling after determining that there is no legally sufficient reason (based on evidence presented) for a reasonable jury to reach a different conclusion.

Burden of Proof Definition

Standard the plaintiff the would have to demonstrate in order to recover damages from the other party.

Preponderance of Evidence

Majority of civil cases (focuses on can the party convince the jury facts) are as he or she contends. Greater weight of evidence in support of proposition than against it.

Beyond a Reasonable Doubt

Reasonable person given the facts will find that all of the evidence from the charged defense has been proven.

Deciding the Case Jury

Principal job of a jury is to determine what the facts are and to apply the law to these facts as instructed by the judge.

Judgement

Judge deciding whether to accept the verdict or not.

Motion for judgment notwithstanding the verdict

Granted if judge finds that reasonable persons viewing the evidence would not reach the verdict.

Motion for a New Trial

Granted if a legal mistake was made

Brief

short description of the case by each party to the trial and arguments for reversing or affirming the lower court decision. Factual summarys and arguments in reversing lower court decision.

Res Judicata

Cause of action may not be relegated (downgraded) once it has been judged on the merits.

Res Judicata Rule Definition

Claims that have either been litigated or that could have been litigated from being litigated again.

The Constitution

Document of democracy, provides the legal framework of our federal government and the authority it has to regulate business activities. Originally drafted in 1787 as an alternative to the Articles of confederation since the states weren’t acting as a nation.

Federalism

Separation of powers between federal and state/local governments. Established in Articles IV, V and VI.

Supremacy Clause

State law is invalid if it conflicts with federal Law.

Supremacy Clause

“This Constitution, and the Laws of the United States … shall be the supreme law of the land.”

Preemption Definition

Concept that allows a higher level of government to limit or even eliminate the power of a lower level of government or government to regulate a specific issue.

Federal Preemption/Supremacy

Congress can expressly reserve an entire area of law for federal regulation. In such a case, the federal law preempts state law. This means any state law that attempts to regulate the same activity is unconstitutional under the supremacy clause.

Commerce Clause

The Congress shall have Power … to regulate Commerce with foreign nations, and among the several states, and with the Indian tribes.

Commerce Clause

With Foreign Nations Vested exculsivity in Congress/Federal Government.

Definition Among the several States

Interpreted broadly to mean commerce that passes across state lines (interstate commerce) and commerce that stays within a single state (intrastate commerce) that substantially affects interstate commerce.