Business Law

Midterm 1

Ethics

principles governing what constitutes right or wrong behavior

Primary Sources of Law

1. U.S. Constitution

2. Statutory Law

3. Regulations created by administrative agencies

Secondary Sources of Law

Legal writings and interpretations, such as books, articles that summarize/ clarify the primary sources of law

Uniform Laws

if state adopts the law, it becomes statutory law in that statethat aims to standardize laws across different jurisdictions.

Case Law

doctrines and principles announced in cases-governs all areas not covered by statutory law or administrative law, is part of our common law

Defendant

party being sued

Plaintiff

Suing party

Stare Decisis

to stand on decided cases

IRAC

issue, rule, application, conclusion

Substantive Law

all laws that define, describe, regulate, and create legal rights and obligations

Procedural Law

all laws that outline the methods of enforcing the rights established by substantive law

Felonies

1 or more year of imprisonment

Misdemeanor

Less serious crimes

Petty offenses

minor violations

Uniform/ Model Laws

at a state level and for practical reasons, UCC

Administrative Law

one president, one congress, one supreme court

Private Law

a branch of the law that deals with the relations between individuals or institutions, rather than relations between these and the government

Common Law

body of unwritten legal rules, fewer written statutes, court cases become precedent

Precedent Application

-if difference is unimportant, the same result

-if difference is important, possibly different result

-judge has broad discretion

Primary Sources of Law

sources that establish what the law is by creating rights and/or obligations

Secondary Sources of Law

sources that describe or summarize primary sources, don’t actually create law, restatements of law

Questions of Law

what the law means, how the law applies, only judges can decide

Questions of Fact

what happened, juries can decide, judges decide if there is no jury

Law Courts

very technical, limited remedies (usually only money)

Equity Court

promotes fairness where law courts would lead to unfair result, more flexible remedies

Civil Law

detailed statutory codes, court decisions NOT precedent

Criminal Case

government vs individual, based on conduct, a wrong against society, proof beyond reasonable doubt

Civil Case

government usually not a party (but can be), based on consequences, proof by a preponderance of evidence

What is beyond reasonable doubt?

what percent sure would you need to be in order to vote “guilty” if you were on a jury in a criminal case? Is it consistent?

Commerce Clause

the constitution grants the federal government, federal government can regulate commerce “among several states”, same rule different laws

Dormant commerce clause

a doctrine that limits the power of states to legislate in ways that impact interstate commerce, conflict with existing federal laws, undue burden on interstate commerce

Dormant commerce clause examples

Gibbons vs Ogden: federal can regulate if activity regulated “substantially affects” interstate commerce

Political Freedom of Speech

fully protected (includes corporations)

Commerical Freedom of Speech

limited protection

Procedural Due Process

deals with right to a trial; hearing before property is taken

Substantive Due Process

law must be sufficiently clear/ understandable, some vagueness is okay

Three levels of Scrutiny

1. Strict Scrutiny

2. Intermediate

3. Rational Basis

Strict Scrutiny

a necessary and crucial reason for a law or policy that justifies infringing on fundamental rights or suspect classifications

Intermediate Scrutiny

applies to government discrimination regarding sex and illegitimacy, easier to justify laws than under strict scrutiny

Rational Basis Scrutiny

lowest level of judicial review used to determine a law's constitutionality, requiring only that the law is rationally related to a legitimate government interest, very easy to justify

Equal Protection Clause

the government must treat everyone in similar situations the same under the law, without unfairly discriminating against them, found in the 14th Amendment

Level of Scrutiny

How hard is it to justify the law’s distinction?

Intermediate Scrutiny Examples

drinking age, social security, draft eligibility

Rational Basis Examples

out of state tuition, liquor store closings, car dealership closings, other industry-specific laws

Privacy Rights

only recently recognized in the constitution, statutory right to privacy re. the governement

Judicial Review

the power of the courts to review/ or invalidate the actions of the other branches

To file suit, one needs:

1. Jurisdiction (subject matter or personal)

2. Venue

3. Standing

Subject Matter Jurisdiction

is this the right court to hear this type of case?

Personal Jurisdiction

Does this court have power over the named defendant in this case?

Subject Matter Jurisdiction State

Most Cases, applies to both civil and criminal

Subject Matter Jurisdiction Federal (exclusive)

Violations of Federal Statutes, copyright and patent, admiralty

Subject Matter Jurisdiction Concurrent

can file in either, diversity ($75000 at issue), federal question (no minimum)

Personal Jurisdiction

Does this sourt have power over the named defendant in this case?… can be based on: residency, physical presence, minimum contracts (for business defendants), consent

In Rem Jurisdiction

Alternative to personal jurisdiction, based on location of property that is subject of lawsuit, usually involves real estate, location of parties isn’t relevant

To file suit, one needs…

Jurisdiction (Subject Matter, Personal/In Rem), Venue, Standing

Venue

“Location”

Within jurisdiction, which location can hear case?

-may be multiple possibilities

can be where:

-plaintiff lives

-defendant lives

-incident occurs

Venue Issues

Venue rules can be modified in special circumstances, change of venue: often requested for fairness to defendant, plaintiff initially picks venue by filing

Standing

must have stake in the outcome, cannot file another’s suit for them, injury must be personalized, standing by citizens has been found to exist in environmental cases

State Court Systems

independent from Federal Courts, must have 3 levels: General Trial, Appellate, Supreme

Federal Court System

3 levels: US Supreme Court, US Circuit Court of Appeals, Trial Courts

Alternative Dispute Resolution

widesoread use suggests courts don’t always meet users’ needs, many forms of ADR, to use the parties often give up rights to use the sourt system, often court-mandated, online forums for ADR

Arbitration

voluntary appointment of arbitrator to make a binding decision, “private judge”, can set own rules, anyone can be arbitrator clauses in contracts

Mediator

neutral third-party mediator helps disputing business parties negotiate and reach a mutually agreeable settlement without imposing a decision

Pros of ADR

cheaper, faster than trial, private and flexible

Cons of ADR

Can fail and you’ll go to court anyway, doesn’t become precedent, possible bias

Pleading (Civil Cases) Complaint

asserts factual allegations and “claim for relief”

Pleading (Civil cases) Answer

Denies/ admits factual allegation, asserts defenses, counter-complaint, and 3rd party complaint

Pleadings (Civil Case) Complaint

-asserts factual allegations

-asserts “Claims for Relief”

Pleadings (Civil Case) Answer

-denies or admits factual allegations

-asserts defenses

-asserts counter-complaint

-asserts third- party complaint

Pretrial Motions: Motion to Consolidate

combine two or more separate lawsuits into a single case for a unified hearing or trial, saves time

Pretrial Motions: Motion to Intervene

allows third parties to protect their interests and participate in a lawsuit that may affect their rights

Pretrial Motions: Motion for Judgement on Pleadings

-”we win” based only on facts in pleadins; no material facts in dispute, only questions of law

-used if pleadings can determine outcome

Pretrial Motions: Motion for Summary Judgement

-”we win” based on additional facts/ evidence beyond pleadings

-can be filed at any time before trial

Discovery

-formal process where attorneys seek information from the other side

-conducted by the parties

-judge only gets involved if a dispute arises

Discovery Purposes

-to eliminate surprise at trial

-to promote settlement of case

Discovery Techniques

-Depositions: Sworn testimony (effective, expensive)

-Interrogatories (inexpensive, less effective)

Other Discovery Techniques

-request for production of documents

-medical examination

-inspections of items vital to case

Picking a Jury

Voir Dire

Picking a Jury Challenges

-peremptory

-for cause

Appeals

-always a right to one level of appeal

-above first level, appeal is discretionary

Legitimate ground for appeal

-procedural defect

-impossible that verdict is correct

-NOT merely because you disagree with outcome

Appeals to U.S. Supreme Court

petition for writ of ceriorari