BLS Notes Exam 1 - Study guide for exam 1 Becker PDF

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Study guide for exam 1 Becker...

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NOTES FROM CHAPTERS Chapter 1: Introduction to Dynamic Business Law Term

Definition

Business Law

consists of the enforceable rules of conduct that govern commercial relationships.

Private Law

regulates disputes between private individuals or groups.

Public Law

controls disputes between private individuals or groups and their government.

Civil Law

lays out the rights and responsibilities implied in relationships between persons and between persons and their government

Criminal Law

regulates situations in which someone commits an act against the public as a whole, such as by conducting insider trading on the stock exchange

Common Law

The collection of legal interpretations made by judges

Legislative enactments ★ Federal = statute/bill ★ State = statute ★ Local = ordinance ★ Administrative = regulation

Chapter 2: Business Ethics -

Ethics: the study and practice of decisions about what is good or right Approach

Description

Ethical relativism

Asserts that morality is relative

Situational Ethics

Requires that when we evaluate whether an action is ethical, we imagine ourselves in the position of the person facing the ethical dilemma.

Consequentialism

Considers the consequences of making a particular decision. Utilitarianism: Evaluating on the basis of “greatest good for the greatest # of people.”

Deontology

Recognizes certain actions as right/wrong regardless of consequences, based on the behavior itself

Virtue Ethics

Encourages individuals to develop virtues (e.g., courage and truthfulness) based on inherently good characteristics or traits that guide behavior.

Ethics of Care

Ethical behavior determined by actions that care for & maintain human relationships.

Chapter 3: The U.S. Legal System Jurisdiction: referring to the courts’ power to hear cases and render decisions that bind parties to them -

In personam jurisdiction: (“jurisdiction over the person”) court’s power to render a decision affecting the rights of the specific persons before the court.

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Original v Appellate Jurisdiction Original Jurisdiction

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The court in which a case is first heard Also called trial courts Have the power to hear and decide cases when they first enter the legal system Parties present evidence and call witnesses to testify States: courts of common pleas, county courts Federal: district courts

Appellate Courts

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The court to which a decision is made by that court is appealed Have the power to review previous judicial decisions to determine whether trial courts erred in their decisions Review transcripts of trial proceedings and sometimes consider oral/written arguments from each party

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Question of Law & Question of Fact ★ Question of Law: an issue concerning the application of interpretation of a law ○ ○

Does the First Amendment protect the student’s right to utter racial slurs? Only judges can decide on questions of law

★ Question of Fact: a question about an event or characteristic in a case ○ ○

Did the student yell racial slurs? Determined in the trial court

Names of cases Original Jurisdiction

Plaintiff v Defendant

Appellate Court

Appellant v Appellee * appellant will be the person who lost previously (the person appealing)

Supreme Court

Petitioner v Respondent

Subject-Matter Jurisdiction: a court’s power to hear certain kinds of cases 1. Federal Jurisdiction a. All federal laws b. Ambassadors and ministers c. Cases on the high seas (admiralty and maritime) d. Controversies involving the United States e. Controversies between states and citizens of another state f. Controversies between two (+) states g. Controversies between citizens of different states h. Constitutional issues ★ Bolded will be concurrent jurisdiction

2. State Jurisdiction 3. Concurrent Jurisdiction: both states and federal courts have jurisdiction - Plaintiff can initiate the case in either federal or state court -

Right of removal: entitles the defendant to transfer case to federal court system

a. Federal question cases i.

Require interpretation of a constitution, a federal statute, or a federal treaty

b. Diversity of citizenship cases i. ii.

Plaintiff and the defendant are not from the same state Controversy concerns an amount in excess of $75,000 2

Federal Preemption: a principle asserting the supremacy of federal legislation over state legislation when both pertain to the same matter - In areas with concurrent authority, federal gov can decide to regulate that area exclusively Venue: determines which trial court in the system will hear the case. - Matter of geographic location - Trial court where the defendant resides or where the incident took place over which the lawsuit arose - Defendant can file a motion for a change of venue Structure of the US Court System - Two parallel structures: federal and state systems - Three main levels: 1. Trial Courts 2. Intermediate Appellate Courts 3. Court of Last Resort

Federal Court System 1. Federal Trial Courts a. Courts with original jurisdiction = US district courts b. Almost every case in the federal system begins at one of these courts

2. Intermediate Courts of Appeal -

Circuit court of appeal -- US has 12

3. Court of last resort -

US supreme court Also the court of last resort in state cases -- but will not hear cases of pure state law

State Court System Cases that start in state court stay in the state judicial system until the case has exhausted its state remedies (and deals with a federal issue) -- then it can petition to be heard in the US Supreme Court (writ of certiorari) Threshold Requirements 1. Standing a. person who has the legal right to bring an action in court has standing: outcome of the case must personally affect him/her

2. Case or Controversy a. Relationship between plaintiff and defendant must be adverse b. Actual or threatened actions of at least one of the parties must give rise to an actual legal dispute c. Courts must have the ability to render a decision that will resolve the dispute (final judgments can solve existing problems)

3. Ripeness a. Will affect the parties immediately

Steps in Civil Litigation 1. Pretrial a. Informal negotiations b. Pleadings i.

Plaintiffs attorney initiates a lawsuit by filing a complaint

c. Service of process i. ii.

Defendant needs to be notified of the lawsuit to satisfy due process and to obtain in personam jurisdiction Defendant is given a copy of the complaint and summons that explains the basis of the lawsuit 1. If defendant does not respond in a certain amount of time then they will receive a default judgement: in favor of the plaintiff when defendant fails to answer complaint 3

d. Defendant’s Response Can file a motion to dismiss

i.

e. Pretrial Motions f. Discovery Enables the parties to gather information from each other with fa cts from the case Deposition: examine witness under oath Pretrial conference Informal meeting of judge & attorneys to try to work out a settlement

i. ii. iii. iv.

2. The Trial a. Jury Selection Voir dire = jury selection Question to see if the jurors can provide an unbiased opinion about the case Peremptory challenges: each side can challenge 3 potential jurors Can also challenge for cause

i. ii. iii. iv.

b. c. d. e. f.

Opening Statements Examination of Witnesses Closing Arguments Conference on Jury Instructions Post Trial Motions

3. Appellate Procedure - Either party can appeal the judge’s decision ★ Cannot be based on a question of fact ★ To be eligible for an appeal, losing party must argue that a prejudicial error of law occurred during the trial ○

Prejudicial error of law: a mistake so significant that it likely affected the outcome of the case

★ Decisions of the appellate courts 1. 2. 3. 4.

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Affirm: accept the position of the lower court Reverse: if the decision of the lower court is seen as incorrect Vacate: wipes out the previous decision Remand: appeal court thinks a lower court committed an error but does not know how that error affected the outcome of the case, case goes to lower court for a new trial

Bench of judges decide on appeals by majority vote

Appeal to the US Supreme Court - Supreme court sees 80-90 cases each year ★ To file an appeal in the US supreme court, part files a petition asking for the court to issue a writ of certiorari - Court is likely to issue a writ if: 1. case presents a substantial federal question that the SCt has not addressed 2. Multiple circuit courts of appeal have decided on the issue of the case differently 3. A state court of last resort has ruled that a federal law is invalid or has upheld a state law that may violate federal law 4. A federal court has ruled that an act of congress is unconstitutional

Chapter 4: Alternative Dispute Resolution Notes on ADR - Organizations use ADR to solve disputes regarding contracts, insurance, labor, the environment, securities, technology & international trade ★ Reasons for ADR: a. Save money: resolve at the early stages and avoid litigation b. Avoid uncertainty associated with a jury decision: participants have more control c. Avoid setting precedent through a court decision 4

d. Preserve a business relationship

Alternative Dispute Resolution (ADR): resolution of legal disputes through methods other than litigation, such as: 1. Negotiation: a bargaining process in which disputing parties interact informally, either with or without lawyers, to attempt to resolve their dispute -

Parties maintain high levels of autonomy

2. Mediation: disputing parties select a neutral third party to help facilitate communication and suggest ways for the parties to solve their dispute -

Often used for collective bargaining disputes, environmental disputes Advantages

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Allows parties to preserve relationship Potential for creative solutions High level of autonomy

Disadvantages -

Creates an image of equality between parties & assumes agreement is equal → not true when one party has more power

3. Arbitration: resolution of a dispute by a neutral third party outside the judicial setting -

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Who serves as arbitrators: Lawyers, professors, or other professionals Arbitration hearings are similar to a trial Arbitration award: the arbitrator’s decision, even if no monetary compensation is rewarded Commonly used in labor disputes Advantages

- More efficient & less expensive than litigation - More control over the resolution - Can choose arbitrator with subject matter expertise - Greater flexibility in decisions

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Disadvantages - Arbitration panels - Hard to appeal award -- injustice more likely to occur - More people doing it, will turn into litigation - Privacy issues

Methods of securing arbitration: 1. Binding arbitration: provision in contract mandates disputes settled by arbitration 2. Submission agreement: contract how dispute will be resolved through arbitration

Other ADR Methods Type

Definition

Summary Jury Trials

an abbreviated trial that leads to a non binding jury verdict

Minitrials

each side present arguments before representatives & neutral adviser, offers opinion as to what the verdict would be if it went to trial

Neutral Case Evaluations

the parties select a neutral third party and explain their respective positions to this neutral, who then evaluates the strengths and weaknesses of the case

Private Trials

a referee is selected and paid by the disputing parties to offer a legally binding judgment in a dispute

Chapter 5: The US Constitution Basic Notes - Federalism: establishes system that divides power between the federal government & the states 5

- Constitution written in 1789; Bill of Rights (first 10 amendments) written in 1791 ★ About POWER and how power is distributed - Established three branches of the government: -

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Legislative (congress) Executive (president) Judicial (supreme court)

Constitution takes what a tyranny does and does the opposite Anti - Government, Power, Tyranny, Centralization document & is pro-populist Legislative Branch - Congress = House of Representatives + Senate (535 = 435 + 100) → Bicameral legislature Judicial Branch - 9 supreme court justices: 1. 2. 3. 4. 5. 6. 7. 8. 9.

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Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Associate Justice Neil M. Gorsuch Associate Justice Sonia Sotomayor Associate Justice Elena Kagan Associate Justice Brett M. Kavanaugh.

Marbury v Madison strengthened the judiciary Supreme court has the final say on the constitution Judicial review: the power of a court to review legislative and executive actions, such as a law or an official act of a government employee or agent, to determine whether they are constitutional

Key Constitutional Terms Preamble Article I: Section 8 ★ Enumerated powers (important ones to highlight) 1. Levy and collect taxes 2. Borrow $ on credit of the US 3. Interstate Commerce Clause: laws and commerce among nations, and among the several States, and with the indian tribes a. Primary authority for federal regulation of business b. One of the reasons why the federal gov became so powerful, most business became interstate c. Dormant commerce clause: a restriction on the states' authority that is implied in the commerce clause of the USC: the power given to Congress to enact legislation that affects interstate commerce in effect prohibits a state from passing legislation that improperly burdens interstate commerce

4. Naturalization and bankruptcy a. Naturalization: immigration laws

5. Congress can coin money and set standards of weights and measures 9. Constitute tribunals inferior to the supreme court a. Establish federal district courts

18. Necessary and proper clause: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof. a. Gives congress a share of responsibilities

Article I: Section 9 ★ Writ of habeas corpus: used to bring a prisoner before the court to determine if the person's imprisonment or 6

detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. ★ Ex post facto laws: law that retroactively makes criminal conduct that was not criminal when performed, increases the punishment for crimes already committed, or changes the rules of procedure in force at the time an alleged crime was committed ○

○

Contract Clause: the government may not pass any “Law impairing the Obligation of Contract.” ■ courts interpret this clause to mean that no law can be passed that will unreasonably interfere with existing contracts Bill of attainder: passes law that applies to one person

Article IV 1. Full faith and credit clause: -

requires that all decisions, public records, & rulings from one state be honored in all the other U.S. states.

2. Privileges and immunities clause: -

prevents a state from treating citizens of other states in a discriminatory manner. Prevents discrimination when non residents engage in ordinary and essential activities

3. New states 4. Republican form of government Article VI ★ Supremacy clause: any state or local law that directly conflicts with the constitution, federal laws, or treaties is void

Amendments 1. Freedom of Speech, Press, Religion, Assembly Freedom

Restrictions

Notes

Speech

1. Defamation 2. All criminal laws 3. National security 4. Clear & present danger 5. Censorship

- Includes symbolic speech - Hate speech is covered - Slander (oral/verbal) or libel (permanent form) - Defamation: 1. Has to be false/ create a false impression 2. Published (comes into contact with a 3rd person) 3. Injury to a person’s reputation

Press

1. Defamation 2. All criminal laws 3. National security 4. Clear & present danger 5. Censorship 6. Poor reporting 7. Malicious Intent

- Public figure: prove there were poor reporting techniques - Public official: prove malicious intent - more difficult to prove for a public official/ figure

Religion

1. All criminal laws

- establishment clause: prohibits national religion - free exercise clause: gov can’t prohibit religious free expression ★ Separation of church and state

Assembly

1. All criminal laws 2. Traffic laws

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Political speech: speech used to support political candidates or referenda -

Citizens United v. Federal Election Commission: court described corporations not as the “creatures of the law” that some previous courts had considered them, but rather as “associations of citizens” deserving 7

the same free speech rights as individuals

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Commercial speech: speech that conveys information related to the sale of goods and services

2. Right of people to keep and bear arms - There are also state gun laws - About POWER - Wanted to spread out the power of guns and prevent mass government killing/ death -

Deaths from wars in 1900s = 45 m Deaths from genocide = 180 m Gun deaths in 2018 = 14,000

4. Freedom from unreasonable searches and seizures - Unreasonable if the government does not first obtain a search warrant -

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Search warrant: a court order that authorizes law enforcement agents to search for or seize items specifically described in a warrant -

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Evidence seized is inadmissible in court -- exclusionary rule: a law that prohibits the use of illegally obtained evidence in a criminal trial (violation of 4th, 5th, 6th amendment) Burden here is on the government to prove it was right and reasonable

Signed by a neutral magistrate Must demonstrate probable cause: believe it will uncover specific evidence of criminal activity

Reasonable searches and seizures: 1. Stop and frisk a. Terry v Ohio b. Only applies to weapons

2. Incident to a lawful arrest a. When you are reasonably arrested, anything on you that is related to the crime is reasonable admissible

3. Incident to a lawful incarceration a. Same as #2 but when your stuff is taken at jail

4. Under authority of a search warrant 5. Probable cause and no time to obtain a warrant a. Usually applies when a person is in a car

6. Vehicle lawfully in custody 7. Evidence in plain view a. Takes all 5 senses into account -- not just sight b. HAS TO BE STATED LIKE THIS -- CORRECT LEGAL DEFINITION

8. Consent to the search a. Has to be voluntary, officers are allowed to ask to search

9. Any other reasonable search and seizure 5. Rights of Person Accused o...