Business Law Midterm 1

What does "applying a strict scrutiny test" to a government's action mean?

Substantive due process requires that before government can infringe upon a fundamental right, it must prove that the infringement is necessary to further a compelling government goal

What are the two kinds of civil lawsuits permitted in federal court?

federal question cases and diversity cases

How long was the longest jury deliberation ever recorded in the U.S.?

four and a half months

an award of money damages

An order by a court that the defendant pay a sum of money to the plaintiff to compensate them for the defendant's breach of contract or tortious conduct.

an allegation of fact

A claim by one party to a lawsuit that a thing happened or didn't happen

common law

law made by judges in intermediate appellate or supreme appellate courts

general police powers

the exclusive power of state governments to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants

Issues of Law

Questions about what the law requires in a given situation

General police powers: state or federal governments?

state governments

Did the herbs and/or other medicines cause the patient's blindness or was the blindness caused by the original illness?

Issue of Fact

Facts

The things that happened between two parties before the lawsuit started

Issues of law (legal issues)

questions about what the law requires in a given situation

Does the law require that this doctor pay a sum of money to this patient under the facts established in this case?

Issue of law

True or false: if there is a jury, the jury will decide all issues of fact

True

True or false: only in a bench trial ( a trial with no jury) does the judge decide all issues of fact

True

Who makes common laws?

judges in intermediate appellate courts or supreme appellate courts

True or false: lower courts are expected to enforce common law rules and may not defy or modify them

true

Who is the plaintiff (the one bringing the lawsuit) in criminal lawsuits?

an entity of the government, and never the injured party or victim of the crime

Where are the verdicts "guilty" and "not guilty" found in?

Criminal lawsuits

Where are the verdicts "liable" and "not liable" found in?

Civil lawsuits

How does a plaintiff prove his or her case in a civil case?

by a preponderance of the evidence (jury needs to be about 51% convinced or more than the defendant is liable)

Legal positivism

the philosophy that courts should leave lawmaking to legislators, and nullify a law only when it unquestionably violates the Constitution

stare decisis

"Let the decision stand"; the principle that precedent is binding on later cases; similar cases results in similar legal outcomes

Union Pacific Railway Co. v. Capper

The Union Pacific Railway was sued by Mr. Ezelle's mother because Mr.Ezelle, while trespassing on Union Pacific Property, was struck by one of their trains and died from his injuries later that same day at a nearby hospital

true or false: 49 of the 50 states do not impose any legal duty on true bystanders (persons with no relationship to the victim) to take any action when they see a person in danger of suffering injury and the danger does not involve the criminal act of another

True

What happens when both houses of Congress pass a bill?

They send it to the president for signature; if the president signs a bill, it becomes a federal statute and part of statutory law

Is there ever a jury in an administrative proceeding?

No

The power of adjudication

The power to decide individual legal disputes, and to render a decision that is binding upon the parties.

Can the government place restrictions on speech without violating the First Amendment? If so, how?

Yes, the government may place time, place, and manner restrictions. For example, they may place unlimited restrictions on false or misleading commercial speech or on obscene speech.

short answer essay question: What is procedural due process?

The doctrine that ensures that before the government takes liberty or property, the affected person has a fair chance to oppose the action.

appellee

the party opposing the appeal (the one who won at court trial)

Where does round 1 of litigation take place?

in a trial court

true or false: almost all cases start in trial courts

true

Appellant courts include both:

intermediate court of appeals and supreme courts

true or false: discovery consists of powerful tools that enable each party to prepare their own case, and assess the strength of their opponent's case

true

True or false: In the case of Jones v Clinton (U.S. District Court for the Eastern District of Arkansas, 1998), Ms. Jones appealed the trial court's decision, and while that appeal was pending, the parties agreed to settle the case for $850,000

true

What is mediation?

a form of Alternative Dispute Resolution in which the parties hire a neutral third party to help them reach a negotiated settlement

Statutes

Laws created by a legislature

How does the Natural Law school of jurisprudence answer the question "what is law"?

Law is not one thing, but two.

Moral law

National law theorists define it as: The perfect law of nature that predates man

Civil law

Natural law theorists call it "Man's imperfect law"

How does the Natural Law school of jurisprudence answer "Which laws are valid?" "When should a law be obeyed?"

1. all moral law is valid and should always be obeyed

2. civil laws that are just are valid and should always be obeyed

3. civil laws that are unjust are invalid and need not be obeyed

How does the Legal Realism School of jurisprudence answer the question "What is law?"

Law is a combination of written rules, institutions, procedures, and the biases and other limitations of human beings. It is the sum total of everything that contributes to legal outcomes.

True or false: You can sue someone in criminal court

False; you can sue someone in a civil lawsuit

How does the school of jurisprudence called legal positivism answer the question "What is law?"

Law is what the sovereign says it is

What are the names of the two houses that make up the California State Legislature?

The California State Senate and the California State Assembly

subpoena duces tecum

requires the person to appear and bring specific documents

administrative law

regulations promulgated by federal and state administrative agencies

Carey v. Davis (Iowa Supreme Court, 1921)

A man who had been working on a farm passed out in the hot sun, whereupon the farmer had him placed in an open wagon, where he remained for at least an additional four hours in an unconscious condition

Osterlind v. Hill (Supreme Court of Massuchusetts, 1928)

A drunk man rented and then overturned a canoe, whereupon he clung to the canoe for at least 30 mins calling for help, then released his grip on the canoe and drowned, while his cries for help when unheeded by the man who had rented him the canoe.

Who did the California Supreme Court find liable in Tarasoff v. Regents of the University of California?

The California Supreme Court found U.C. Regents liable for the death of Ms. Tarasoff because staff at the University had failed to notify either Ms. Tarasoff or her parenta that a patient under his case, Prosenjit Proffar, had told Dr. Moore he was planning to kill an unnamed woman readily identifiable as Ms. Tarasoff.

True or false: ten other states (including California) impose a legal duty on a bystander to report the situation to police if and only if the danger is the result of a criminal act by another

true

What are the two houses of the United States Congress?

The House of Representatives and the Senate

What were the two most controversial things about the Civil Rights Act of 1964?

Senator Tower's Amendment and Mr. Smith's amendment

Plain meaning rule

When the meaning of a statute is rendered clear by the plain meaning approach, courts are forbidden from supplementing their understanding using either of the other two methods if statutory interpretation

What is the social purpose of administrative agencies?

To do jobs that are too detailed and time consuming for Congress or the state legislature to do themselves.

Enabling legislation

describes the problems that Congress believes need regulation, establishes an agency to do it, and defines the agency's powers; how congress creates a federal agency

true or false: only Congress can create a new federal administrative agency

True

true or false: Only the state legislatures can create a new state administrative agency

True

true or false: most agency adjudications, also known as administrative proceedings, begin with a hearing before an Administrative Law Judge (ALJ)

true

What must a party do if they lose in a hearing before an Administrative law judge (ALJ)?

They must first exhaust all possible appeals within the agency itself before they can appeal that decision to a trial court of general jurisdiction; otherwise known as the Doctrine of Exhaustion of Remedies

What is the "fair notice" requirement?

Requires that federal agencies make their intentions clear enough that, by reviewing the regulations and other public statements issued by the agency, a regulated party acting in good faith would be able to identify, with ascertainable certainty, the standards with which the agency expects parties to conform

What is the "equal treatment" requirement?

Requires that federal agencies apply the rule equally to all legal persons.

While performing statutory interpretation, what do courts do if and only if the planing meaning rule does not render the meaning of a statute clear?

Courts will look at a law's history to help them determine the intent of the legislature so that they can better understand and interpret the as-yet-undeciphered words and phrases in the law.

What is the Freedom of Information Act?

Entitles every citizen to two kinds of information: (1) information about how the agency operates, and (2), information the agency has about us

judicial activism

A court's willingness, or even eagerness, to become involved in major issues and decide issues on constitutional grounds

judicial restraint

the opposite of judicial activism; an attitude that courts should leave lawmaking to legislators and nullify a law only when it unquestionably violates the Constitution

Takings Clause

a clause in the Fifth Amendment that prohibits the government from taking private property for public use "without just compensation"

eminent domain

Power of a government to take private property for public use.

substantive due process (5th amendment)

Some rights are so fundamental that the government may not take them from us at all

procedural due process (5th amendment)

before depriving anyone of liberty or property, the government must go through certain steps, or procedures, to ensure that the result is fair

Equal Protection Clause

A clause in the Fourteenth amendment that generally requires the government to treat people equally

fundamental rights

rights so basic that any governmental interference with them is suspect and likely to be unconstitutional

commercial speech

Communication, such as advertisements, that has the dominant theme of proposing a business transaction

interstate commerce

The buying and selling of goods, services, or labor between persons located in different states

Instrastate commerce

the buying and selling of goods, services, or labor between persons located in the same state

The power of judicial review

The power of the courts to declare a statute or governmental action unconstitutional and void

What were the two main problems with the Articles of Confederation?

1. Under it, the federal government had no ability to raise money, and

2. states were imposing import taxes on each other's products

What does the Supremacy Clause state?

Makes the Constitution, and federal statutes and treaties, the supreme law of the land; when state and federal law conflict, the federal law will predominate and control (the only way the Constitution makes the fed govt strong)

What are the two things that make the U.S Constitution cool?

(1), it created the first national govt the world had ever seen that was deliberately built to be relatively weak or limited in its powers, with most power left in the hands of the state govts and/or the people. (2), it created the first national govt the world had ever seen based on the idea that the people of a nation have inalienable rights given to them not by govt, but by a Creator whose authority is higher than that of any govt.

The president appoints all judges to the federal courts, including the Supreme Court, but these nominees do not serve unless confirmed by the ______

Senate

How does the Congress check the power of a president?

By overriding the president's veto of a proposed bill

What are the 16 words that make up the Commerce Clause of the U.S Constitution?

(The Congress shall have power) "to regulate commerce with foreign nations, and among the several states and with the Indian tribes"

What are the two dimensions or aspects to the 16 words that make up the commerce clause of the US Constitution?

The negative or dormant aspect and the positive aspect

Negative or dormant aspect

states are forbidden from charging import duties or taxes on goods imported from other states into their states

Positive aspect

states that the United States Congress is permitted to regulate both interstate and international commerce

Since when were the interstate and international commerce exclusively regulated by the federal government of the United States?

Since 1787

Between what years was intrastate commerce exclusively regulated by the state governments?

Between 1788-1936

Since when was intrastate commerce jointly or concurrently regulated by the federal and state governments?

From about 1937-to the present.

What are the two powers or functions of the federal courts?

adjudication and judicial review

What does the First Amendment of the US Constitution state?

Congress shall make no law prohibiting the free exercise of religion, abridging the freedom of speech, or the press, or the right of the people to peaceably assemble, or their right to petition government for a redress of their grievances.

true or false: Under the first amendment, all types of speech are protected equally

false

Which speeches (political, commercial, non-obscene, and obscene) receive the highest level of protection, an intermediate level of protection, various levels of protection, and no protection?

Political speech receives the highest level of protection, commercial receives an intermediate level of protection, non-obscene receives various levels of protection depending on its nature and purpose, and obscene speech receives no protection.

What is the one rule for when government may abridge or punish political speech? (comes to us from the Supreme Court decision of Brandenburg v. Ohio (1969))

Government may abridge or punish the speech only if it is intended and likely to cause imminent lawless action

true or false: courts generally permit the government to define false or misleading commercial speech as legal, and do not punish those who engage in it

false

When commercial speech is not false or misleading, how else can the government regulate it?

If the government has a substantial interest in regulating the speech, the speech restriction directly advances this interest, and the regulation restricts speech no more than necessary to achieve the purpose.

The Due Process Clause of the Fifth Amendment reads......

"No person... shall be deprived of life, liberty, or property without due process of law"

The Takings Clause of the Fifth Amendment reads.....

"Nor shall private property be taken for public use without just compensation"

What is the purpose of procedural due process?

To ensure that before the government takes liberty or property, we have a fair chance to oppose the action.

What is the amount of process due dependent on?

The value of the property or liberty interest at stake