Business Law Test 1

pub zone

case that teaches us about negligence and whether or not people have a duty to defend or duty to warn

federalism

powers divided between state and federal governments

precedent

judges decide current cases based on previous rulings

the accumulation of precedent through many cases

What makes up common law?

The U.S. Constitution

What is the supreme law of the land?

establishes national government in three branches, creates a system of checks and balances, guarantees many basic rights to the American peopleWh

What 3 things does the constitution do?

legislative, judicial, and executive

What are the 3 branches of government?

legislative

branch that gives the ability to create new laws

executive

branch that has the authority to enforce laws

judicial

branch that has the right to interpret laws and determine their validity

the Constitution as amended

What is the most important and greatest document ever written?

judge-made law

What is common law?

100

How many senators?

435

How many in the House of Representatives?

right to marry, travel, contract, work, and have privacy

What are the fundamental rights that are missed but understood in the Constitution?

statutes

What is the #1 source of contemporary law?

a bill

How are statutes introduced to Congress?

win a two-thirds majority of House and Senate

How can congress pass a law the president vetoes?

court order

issued by a judge that places binding obligations on specific people or businesses. Ex: Injunction

No, the Supreme Court can change it.

Is precedent binding in all courts of the law?

Congress

Who are most government agencies created by?

treaty

an agreement between two or more sovereign countries

treaty

binding and has the force of federal law

criminal law

concerns behavior so threatening that society outlaws it altogether

the government

Who prosecutes the defendant in a criminal case?

a prison sentence, fine (money goes to state), or both

What is the punishment in a criminal case?

beyond a reasonable doubt

What is the burden of proof for criminal law?

civil law

concerns the regulation of rights and duties between parties

a preponderance of evidence (at least 51% guilty or not guilty)the

What is the burden of proof in a civil case?

jurisprudence

the knowledge, skill, or study of law

common law

sum of all cases decided by appellate courts

tort, contract, and agency. important in property & employment law

Common law still predominates in which types of law?

let the decision stand

what does stare decisis mean?

You have no duty to assist someone in peril unless you created the danger

What is the law of bystander obligations?

Union Pacific v. Cappier

tells us that bystanders have no obligation to assist unless they created the danger

Carey v. Davis

case that went against bystander precedent and held the employer liable since he was present, it was an emergency, and the worker was suddenly stricken

Osterlind v. Hill

case where bystander did not come to the assistance of a drowning man but as a bystander he didn’t have to.

Tarasoff v. Regents of the University of California

created the protection of attorney-client privilege, doctor-patient, priest-confessioner, employer-employee, and hotel-guest relationships

statutes

What is a part of legislation that “we the people” have control over?

a bill

a statute proposed to Congress that must be voted on and approved by both house to become a law

plain meaning rule, legislative history and intent, and public policy

What are the 3 primary steps in statutory interpretation?

plain meaning rule

when a statute has normal everyday words, the court applies those words with their commonsense definitions

legislative history and intent

when the court looks at the law’s history to determine what the legislature meant

public policy

when the courts rely on general life guidelines to determine what a law means

the President

Who can veto bills?

Congress; Override

Who can reverse a veto and what it is called?

the President

Who can hire and fire agency workers (bureaucrats)?

executive agencies

agencies that are subject to the president’s discretion and policies

independant agencies

agencies that are not subject to the president’s removal power

passing enabling legislation

How does Congress create a federal agency?

they make rules, investigate, and adjudicate

What are the 3 kinds of power that agencies have?

promulgating it

creating a new rule

legislative and interpretive

What are the 2 types of rules promulgated by agencies?

Legislative

What is the most important type of agency rule, kind of like a statute?

interpretive rule

agency rule that does not change the law

subpoena

an order to appear at a particular time and place to provide evidence

statutory control, political control, judicial review, and informational control

What are the 4 primary limits on agency power?

exhaust administrative remedies

What do you have to do to go to court through an administrative hearing?

statutory control

What limit on agencies creates by statute and kills by statute?

Political control

Which limit on agencies controls the purse?

Judicial review

Which limit on agencies says one must’ve taken all possible appeals within the agency itself?

Informational control

What limit on agencies says that people can have access to information from the agency?

Freedom of Information Act

says that people have access to the information that federal agencies are using

federal government agencies

What is the only thing that FOIA applies to?

the Constitution

What document is a series of compromises about power?

Article I

Which article of the Constitution created Congress?

Article II

Which article of the Constitution created the office of the President?

Article III

Which article of the Constitution created the Supreme Court?

There are ONLY 18 types of statutes that Congress is allowed to pass.

What does Article 1 Section 8 of the Constitution say?

The Commerce Clause which says that Congress has the power to regulate commerce among the several states.

What is one of the most important clauses in Article 1 Section 8?

Wickard v. Filburn

What case teaches us that Congress may regulate any activity that has a substantial economic effect on interstate commerce?

Things don’t need to travel from one state to another to violate the Commerce Clause as long as they have a substantial effect on interstate commerce.

What does Wickard v. Filburn teach us?

United States v. Lopez

What case tells us that Congress cannot pass a law on anything it wants?

Possession of a gun in a school zone is not an economic activity that effects interstate commerce, so the case was voided.

What was the holding in U.S. v. Lopez?

unconstitutional

When a state tries to affect interstate commerce or regulate it, it is almost always…?

dormant/negative Commerce Clause

state statutes that discriminate against interstate commerce are unconstitutional

the Supremacy Clause

states that the Constitution and federal statutes and treaties shall be the supreme law of the land.

federal law

What law preempts when there is a conflict between federal and state statutes or when there isn’t conflict but Congress intends to exercise exclusive control?

Judicial Review

What is the greatest power of the Supreme Court which does not come from the Constitution?

appointment, legislation, foreign policy

What are 3 of the President’s (executive) key powers?

adjudicating cases and judicial review

What are the 2 key functions of Judicial Power?

judicial review

what is the power of the federal courts to declare a statute or governmental action unconstitutional and void?

Marbury v. Madison

What is the case where Congress tried to give the Supreme Court more power, but the Supreme Court voided it because it violated the Constitution?

incorporation

What is it called when rights explicitly guaranteed at one level are incorporated into rights that apply at other levels?

private organizations (NFL, fraternities and sororities)

Where does equal protection not apply?

The Establishment Clause & the Free Exercise Clause

What are the two parts of freedom of religion under the first amendment?

must have a secular purpose, must not have a primary effect of advancing or inhibiting religion, and must not foster excessive entanglement of government with religion

What 3 requirements must the Establishment clause meet?

The Establishment Clause

What clause requires a separation of church and state?

The Free Exercise Clause

Which clause prohibits the government from prohibiting or penalizing particular religious beliefs or practices, no matter how unpopular?

Texas v. Johnson

What case shows that free speech doesn’t end in the spoken word. It also extends to conduct that conveys a message. (SYMBOLIC SPEECH)

political speech

What is the most protected speech under the law?

when it is intended and likely to create imminent lawless action (January 6th)

What is the ONLY limit to political speech?

political speech

What type of speech is protected even if it is offensive, outrageous, and false?

time, place, and manner of which it is spoken

What is a regulation the government can have on free speech?

free speech zones

How have universities regulated the presence of free speech demonstrations without interference of education and lectures?

False. It can be limited but not prohibited.

True or False. Free speech is an absolute right.

No

Does obscenity receive constitutional protection?

Miller v. California

What case provides us with a 3-part test to determine if a creative work is obscene?

commercial speech

Which type of speech is regulated more closely than any other?

Procedural due process, the Takings clause, and Substantive due process

What are the 3 limitations to the government taking a person’s liberty or property?