Business law TEST 1

•Written laws that are passed by the federal or a state legislature and then either approved or rejected by the executive branch.

Statutes:

•Written laws at the local level.

•Generally, regulate issues such as zoning or impose health and safety regulations.

Ordinances:

what are the 4 kinds of law

•Constitutional law.

•Statutory law.

•Common law.

•Administrative law.

essentially law made by the courts or law made by judges.

Common Law

who must fill in the gaps when a controversy arises that is not covered under existing law.

the court

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

•One of the most important concepts in American law.

•Allows individuals and businesses to have some degree of confidence that the law will remain reasonably constant from year to year and court to court.

Doctrine of stare decisis

WHat is it when_judges today must rule the same way they rules in the past/what PRECEDED or happened before

Precedent

•Used to apply the law of previous cases to current cases with substantially similar circumstance.

Provides an element of predictability for lawyers and litigants when they are contemplating legal and business decisions and actions

How stare decisis/precedent works

is the act of suing

Litigation

a party/person in lawsuit_

Litigant

Why does Strict adherence to precedent and the doctrine of stare decisis has a significant drawback

•: It does not allow for evolving societal standards of behavior or expectations.

•Source of law that regulates the exercise of authority by government agencies (administrative agencies).

Administrative law:

•Designed to protect society, and the violation of criminal laws results in penalties to the violator such as fines or imprisonment.

Criminal laws:

What law is when No one goes to jail; people are just suing each other; also known as _litigation

Civil Law

•Designed to compensate parties (including businesses) for losses resulting from another's conduct.

Civil laws:

What law is when someone broke a LAW and committed a CRIME; someone could go to jail; no one is suing anyone (like in civil law); instead, the _government is prosecuting someone for a crime.

criminal law

•If the Constitution, a statute, or administrative law is silent about a topic, then we ask _____ to make a law about that topic_

Judges

•A body of rules of action or conduct prescribed by controlling authority and having legal binding force.

Creates duties, obligations, and rights that reflect accepted views of a given society

LAW

•Defined as the science and philosophy of law, defines several schools of thought that are used to describe various approaches to the appropriate function of law and how legal doctrines should be developed and applied.

Jurisprudence

the law and how it works____

Jurisprudence

•Provide for some system of order that defines rules of conduct and levies punishment or other consequences for the violation of those rules.

•Example: the law says what a crime and and defines what will happen if you commit the crime._

Purposes of a law

•To provide a system of order that defines conduct and consequences.

•To promote equality and justice in society.

•To provide a method for resolving disputes.

•To promote good faith dealing among merchants.

To provide a degree of reliability in applying the law evenly

Primary purposes of WHAT?

LAW

law is a system that keeps society in order

SYSTEM of ORDER

businesses must do the right thing and not lie when selling products_

good faith among merchants

businesses are Not complying/following the law

NONCOMPLIANCE

•Involves using the law creatively and strategically not only to minimize costs and risks but also to create new sources of value as well as generate new streams of revenue.

•Acknowledges that law can often be a source of competitive advantage.

Value Creation

is the foundation for all other law in the United States and is the supreme law of the land.

constitutional law

the constitution is the SUPREME or most important LAW in the country

SUPREME LAW of the land

1.Establishes a structure for federal and state governments setting rules for amending the constitution and granting specific enumerated powers to the different branches of government.

2.Establishes the concept of federalism, allowing the federal and state governments shared powers.

3.Establishes individual civil rights and provides procedural protections for U S citizens from wrongful government actions.

Constitutional law

the federal government and state governments both get powers that are enumerated/listed in the constitution

ENUMERATED POWERS

the federal government and state governments share power

structure

where both the federal government and state governments share power

federalism

lists the PROCEDURES/ways you can PROTECT your rights

PROCEDURAL PROTECTIONS

•The Constitution reflects the basic principles of a particular society and should be amended only in extraordinary cases and only when a majority of its constituents agree over a certain period.

the rights in the Constitution are PERMANENT or stay the same EXCEPT for when society begins to think differently about a topic

Permanence

Constitutional law is supreme over all other sources of law such as federal and state statutes, treaties, and common law

Preemption

constitution law will always PREEMPT or trump all other laws

preempt

•Prelawsuit phase

•Pleadings stage

•Discovery stage

•Trial phase

•Posttrial phase

Stages of litigation

•The parties typically attempt to negotiate a settlement and must consider some of the requirements for filing a lawsuit such as standing and the statute of limitations.

•Prelawsuit phase

is a form of alternative dispute resolution (ADR) that attempts to work out the dispute instead of filing a lawsuit and beginning litigation

negotiation

•= instead of suing someone, we will do an ALTERNATIVE/different way to RESOLVE/fix our DISPUTE/problem

ALTERNATIVE DISPUTE RESOLUTION

•The parties file documents laying out the details of the dispute.

•Pleadings stage

•Pleadings are certain formal documents filed with the court that state the parties' positions.

pleadings

•: Sets out the plaintiff's version of the facts of the case, the damages that have been suffered, and why the plaintiff believes that the defendant is legally responsible for those damages.

•the first pleading and is what starts a law suit_

complaint

•is a pleading that responds to each paragraph of the plaintiff's complaint.

an answer

•If the defendant doesn't answer within ____ days, then the _______ automatically wins

•So the defendant must answer or they will automatically lose

30, plantiff

•Once the initial pleadings are filed, most lawsuits move into the discovery stage, in which the parties attempt to collect evidence for trial.

= the STAGE/time when the parties try to DISCOVER/find out what each side has for evidence

Discovery stage

•Discovery is the legal process for the orderly exchange of evidence.

discovery

= ORAL questions

: The defense attorney wants to do a deposition on the plaintiff. The defense attorney will ask, out loud, questions to the plaintiff. The plaintiff will then, out loud, answer those questions.

deposition

Written questions submitted to the opposing party that must be answered in writing

B's attorney will send A interrogatories. An example of a written question inside the interrogatories would be "Please state how fast you were traveling at the time of impact the day you were in a car wreck with B.

Interrogatories

•Can be very wide in scope, so that such a request would cover all documents, memorandums, reports, notes, calendars, videotapes, audiotapes, emails, computer hard drives, and so on relevant to the case at hand.

: Inside a request for production, there would be several statements like "Please produce your medical bills and records."

Request for Production

•This is the process of asking potential jurors questions to reveal any prejudices that may affect their judgment of the facts.

Jury Selection

French for "to speak the truth;" lawyers ask questions of people to see whether they would be a good juror for that case

vior dire

After the jury has been selected, the attorneys present their theories of the case and what they hope to proved to the jury in their what

opening statements

•Presentation of Evidence

•This is just when the lawyers call witnesses and question them.

•PRESENTATION of EVIDENCE = when lawyers call witnesses to PRESENT/tell the jury the EVIDENCE/what they saw

•Example: A takes the stand to tell the jury their side of things.

Stages of Litigation: Trial

Once the testimony is completed and the evidence has been submitted to the jury, each attorney sums up the case and tries to convince the jury that their version of the case is more compelling

Closing argument

The jury's decision is the

verdict

After receiving the charge, jurors move to a private room and engage in

• deliberations.

•Very simply, this is just when a party decides whether they want to appeal a bad ruling or not.

•Example: A loses at trial. He decides to APPEAL the case to the Court of Appeals.

•Posttrial phase

) refers to nonjudicial methods by which disputes involving individuals or businesses are resolved outside of the federal or state court system through the assistance of third parties.

Alternative dispute resolution (A D R)

Given the risks of litigation, some of the potential advantages of A D R over litigation are:

•Costs;

•Preserving the business relationship;

•Time;

•Expertise; and,

•Privacy.

-instead of using a judge or a court, we're going to use someone else

Assistance of Third Parties

The main two methods of ADR are

mediation and arbitration.

•Mediation is becoming increasingly common as a cost-efficient form primarily because it is relatively informal and does not require as much time or preparation as arbitration.

•The mediator is often (though not required to be) an attorney who is specially trained in the art of negotiation.

•The mediator's task is to facilitate discussion, listening to each party's grievances and arguments and ensuring communication between the parties.

•In mediation, no final decision is rendered—If the parties are unable to reach an agreement, they must resolve their dispute using another method.

Mediation

= the person we're using to fix our problem, instead of a judge

mediator

•The arbitrator does the same thing as a mediator.

•Unlike the mediator's decision, however, the arbitrator's decision is binding and must be followed.

Arbitration

Non binding

Binding

Mediation

arbitration

The United States is a federal system in which a national government in Washington, D C coexists with state governments in each state.

The Constitution grants limited powers to the federal government.

The Federal System

-the federal government can only do things SPECIFICALLY GRANTED/given to it in the Constitution.

- Example: The federal government handles federal taxes because it's SPECIFICALLY GRANTED/listed in the Constitution that it has the power to do so.

specifically granted

the right to do something

inherent

the right to use power

Inherent Power

can only do what's listed in the constitution

federal government

can do everything else

State Governments

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

functions of the constitution

Legislative branch=

executive branch=

judicial branch=

Congress

president

courts

The first three articles establish a system of government with three coequal branches: the legislative branch, the executive branch, and the judicial branch.

•This method of dividing power among the three coequal branches is commonly called the system of checks and balances.

Structure of the constitution

-Article 1 =

-Article 2 =

-Article 3 =

Congressional Powers

Executive Powers

Judicial Powers

Which article I gives powers to the Legislature to:

•1. Write laws called statutes.

2. Power to tax and spend government money

Article 1

WHich article powers to the Executive Branch:

•The president is head of the federal executive branch.

•The president is commander-in-chief of armed forces.

•The executive branch can carry out laws made by the legislature.

Article 2

Which article gives powers to the Judicial Branch:

-The courts decide cases.

Courts have the power of judicial review

Article 3

is the notion that courts have the right to invalidate laws that are inconsistent with the US Constitution in some way.

a JUDGE can REVIEW a statute; if the judge thinks the statute violates the Constitution, then the judge can invalidate/make the statute not valid

Judicial Review

In what case The Constitution is superior to federal and state statutes; and,

When there is a conflict between the Constitution and a state or federal law, the Court has the authority to declare the challenged law as unconstitutional

In Marbury v. Madison

.In what case is When there is a conflict between the Constitution and a state or federal law, the Court has the authority to declare the challenged law as unconstitutional.

-A statute violates the Constitution.

-Since it violates the Constitution, a court, under judicial review_, will say that the statute does not have to be followed.

In Marbury v. Madison

WHich amendment contains the important introductory phrase "Congress shall make no law" and then articulates several specific protections against government encroachment in the areas of religion, press, speech, assembly, and petition of grievances.

1st Amendment

the government can't keep you from peacefully protesting

Assembly

the government can't keep you from criticizing it

Speech

the government can't keep journalists from reporting the news

Press

the government can't tell you what religion to be

religion

•Although the U S Supreme Court has given broad protections to speech that involves political expression, the First Amendment is not absolute.

•Courts have ruled that the government may place reasonable restrictions on the time, place, and manner of political expression in cases, for example, where public safety may be threatened.

Limits on free speech

•: if speech could hard the publics safety then it is NOT protected.

•Example: yelling "fire" crowded theater

Unsafe speech

•= something offensive or disgusting

•Example: a business using pornographic images in its advertisement

Obscenity

the act of communicating false statements about a person that injures the reputation of that person

•Alice gets hired by a bank. Betty lies and tells the bank manager that Alice is a thief. Based on this statement, the bank decides to take back their offer to hire Alice.

•Defamation

writtem lies

Libel

spoken lies

Slander

•is untrue or misleading information given to you to get you to buy something.

•Example: Sketchers falsely advertising that their Shape Up Shoes would help people lose weight just by walking in the shoes.

False advertising