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Summary

Chapter 1, 3-4, 6-7 for professor Chris Haynes
Notes on Introduction to Business Law, Jurisdiction, Administrative Law, Criminal Case Procedures and Tort Laws ...

Description

Business Law

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Enforceable rules of conduct that govern commercial relationships o Governs the actions of buyers & sellers in market exchanges

Law

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Rules of conduct in any organized society that are enforced by the governing authority of the community o Rules that must be followed o Enacted by someone with authority o That are enforceable against you

Classifications of the Law Private Law

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Law that involves suits between private individuals or groups

Public Law

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Involves disputes between private individuals or groups and their government o If a computer store dumps waste behind building – violation of local/state/federal regulations

Civil Law

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“anything not criminal” The body of laws that govern the rights and responsibilities either between persons or between persons and their government o Involves remedies when someone’s rights are violated

Criminal Law

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The body of laws that involve the rights and responsibilities an individual has with respect to the public as a whole o When someone commits an act against the public as a whole

Sources of Business Law How is law created and where do we look to find laws? 

Constitutions o Constitutional Law: The general limits and powers the federal and state governments as stated in their written constitutions

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Statues o Statutory law: The assortment of rules and regulation put forth by legislatures (legislative acts passed by Congress)

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Model (Uniform) laws: Serve as a basis for some statutory law at the state level – serve to standardize different interstate laws

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Cases o Case (Common) law: Collection of legal interpretations made by judges o Precedent: Tool used by judges to make rulings on cases on the basis of key similarities to previous cases

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Administrative law o Administrative law: Collection of rules and decisions made by administrative agencies to fill in particular details missing from constitutions & statutes

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Treaties o Binding agreement between two states or international organization – similar to contracts o Negotiated by the executive branch

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Executive orders o Laws enforced by the President

Chapter 3: The US Legal System & Alternative Dispute Resolution Jurisdiction: courts’ power to hear cases and render decisions that bind the parties before them Original Vs. Appellate Jurisdiction Trial courts or Courts of original jurisdiction

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Have power to hear and decide cases when they first enter the legal system o Parties present evidence & call witnesses to testify o AKA courts of common pleas, country courts, district courts

Appellate courts or Courts of appellate jurisdiction

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Have power to review previous judicial decisions to determine whether trial courts erred in their decision o DO NOT hold trials – judges review transcripts of trial court proceedings & occasionally consider additional evidence from each party (rarely) o Handel only questions of law  An issue concerning the interpretation or application of a law

Jurisdiction over persons and property In personam jurisdiction

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Courts power to render a decision affecting the rights of specific persons before the court o Courts authority to determine personal rights and liabilities of parties before it Extends only over a specific geographic region

Subject-matter jurisdiction

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Courts power to hear certain kinds of cases

Exclusive Federal Jurisdiction      

Admiralty cases Bankruptcy cases Federal criminal prosecutions Cases in which one state sues another state Claims against the US Other claims involving federal statutes that specify exclusive federal jurisdiction

The Federal Court System 3 main courts   

US district courts (trial) Intermediate Courts of Appeal – 12 circuits The Court of Last Resort – Supreme Court

State Court Systems Each state has devised their own court system – most states have similar structure to federal   

State trial courts Intermediate Courts of Appeal Courts of Last Resort – State supreme court

Threshold Requirements

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Cases must meet 3 threshold requirements that ensure that courts hear only cases that genuinely require adjudication

1) Standing  the legal right of a party or an individual to bring a lawsuit by demonstrating to the court sufficient connection to and harm from the law or action challenged (standing to sue)  outcome must personally affect him or her 2) Case or Controversy  Ensues that courts do not render advisory opinions – justifiable controversy o Relationship b/w plaintiff & defendant must be adverse o Actual or threatened actions of at least one party must give rise to actual legal dispute o Courts can give final judgements that solve existing problems, not hypothetical 3) Ripeness  The readiness of a case for decisions to be made  Goal is to prevent premature litigations – must affect parties immediately Venue

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Determines which trial court in the system will hear the case Matter of geographic location that each state determines – the most appropriate geographical location where a case should be heard o Usually where the parties reside or were case allegedly arose

Steps in Civil Litigation Pretrial Stage Rules of civil procedure govern civil case proceedings       

Informal negotiations Pleadings Service of Process Defendants response Pretrial motions Discovery Pretrial conference

Discovery

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The pretrial phase in a lawsuit Enables the parties to learn about facts surrounding the case so that they are not surprised in the courtroom

Appellate Procedure

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A prejudicial error must be present o A mistake so significant that it likely affected the outcome of the case Appeals are only on the record o No additional evidence can be considered For most cases, only one appeal to an intermediate court of appeal is allowed

Appellate Court decision making powers

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Affirmation Modification Reversal Remand

Appeal to the US Supreme Court Writ of Certiorari

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A supreme court order, issued after the court decides to hear an appeal

Alternative Dispute Resolution (ADR)

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The resolution of legal problems through methods other than litigation

Primary Forms of ADR

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Negotiations Meditation

Pros:

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Cons: Helps disrupting parties preserve their relationships – attractive for businesses with working relationships Finding creative solutions High levels of autonomy to participants

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Creates image of equal parties working towards an equitable solution, thereby hiding power imbalances that would lead to the party with greater power securing an agreement of greater benefit Some enter meditation with no intention of solution, & use mediation as a delay tactic

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Arbitration

Pros:

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Cons: More efficient and less expensive Parties have more control over the process of dispute resolution Parties can choose someone to serve as the arbitrator who has expertise in the subject matter

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Efficiency & lower cost advantages decrease Difficulty of appealing arbitration award Loss of civil rights & remedies available through litigation Companies and employees may effectively “hide” their disputes through arbitration

Binding Arbitration Clause

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A provision in a contract that mandates that all disputes arising under the contract must be settled by arbitration

Chapter 6: Criminal Law and Business Elements of a Crime 1) Wrongful behavior – actus reus 2) wrongful state of mind – mens rea Classification of Crimes Felonies

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A serious crime (murder, rape, robbery) Punishable by imprisonment for more than 1 year or by death

Misdemeanors

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A crime that is less serious than a felony Punishable by a fine and/or imprisonment for less than 1 year

Petty offences

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A minor crime Punishable by a small fine and/or imprisonment for less than 6 months in a jail

White-Collar Crime

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Variety of nonviolent illegal acts against society that occur most frequently in the business context

Types of White-Collar Crimes 

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Bribery o A corrupt and illegal activity in which a person offers, gives, solicits or receives  Something of value was offered, given or promised to;  A federal public official with;  And intent to influence that person’s judgement or conduct Extortion o aka blackmail o criminal offence in which a person obtains money, property and/or services from another by wrongfully threatening or inflicting harm on the other person, property or reputation. Fraud o an intentional deception that causes harm to another  a material false representation makes with intent to deceive  victim’s reasonable reliance on the false representation  damages Embezzlement o Wrongful conversion of another’s funds or property by one who is lawfully in possession of those funds or that property (initially have rights of the possession) Computer crimes o Crime committed using a computer

Criminal Procedures Criminal Procedure - The government, through a prosecutor always brings the criminal case - The objective is punishment, in the form of a criminal fine and/or imprisonment - Numerous constitution safeguards for the criminal defendant

Civil Procedure - The party’s filing case, the plaintiff, can be an individual, business or government entity - The objective is to remedy a wrong done to the plaintiff, so the defendant will wither have to pay money damages, or be subject to an equitable remedy (injunction (order) or specific performance)

Pretrial Procedure Miranda Rights

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The rights that are read to an arrested individual by a law enforcement agent before the individual is questioned about the commission of a crime o “You have the right to remain silent and refuse to answer any questions.” o “Anything you say may be used against you in a court of law” o “You have the right to consult an attorney before speaking to the police and have an attorney present during any questioning now or in the future” o “If you cannot afford an attorney, one will be appointed for you before the questioning begins.” o “If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one” o “Now that I have advised you of your rights, are you willing to answer any questions without an attorney present?”

Criminal Procedure: Trial Procedure

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Jury selection Trial (with burden of proof and prosecution) o The duty of the plaintiff or prosecution to establish a claim or allegation by admissible evidence and to prove that the defendant committed all the essential elements of the crime to the jury’s or court’s satisfaction beyond and reasonable doubt, in order to convict the defendant Jury deliberations Jury verdict Sentencing hearing (if defendant found guilty)

Affirmative Defenses to Crimes 

Infancy

o A person who is not yet a legal defuse the “guilty mind” requirement of a crime 

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Mistake of fact o The defendant says his or her honest and reasonable mistake about a fact relevant to the commission of the crime negates the idea of a guilty mind  Peanut allergy Intoxication o Defendant says he or she took an intoxicant without awareness of its likely effect, mistook its identity, or tool in the intoxicant under force Insanity o Defendant contends he or she had a severe mental illness that substantially impaired the defendant’s capacity to understand and appreciate the moral wrongfulness of the act Duress o The defendant says he or she was forced to perform an act against his or her will Entrapment Necessity o The defendant contends he or she was acting to prevent imminent harm, and there was no legal alternative to the action her or he took Justifiable use of force o The defendant contends the use of force was necessary to prevent imminent death or great bodily harm to the defendant or to another or to prevent the imminent commission of a forcible felony  Self defense

Criminal Procedure: Post Trial Procedure   

If jury verdict of not guilty o government (prosecution) cannot appeal the acquittal If jury returns verdict of guilty o Defendant may appeal verdict by claiming prejudicial error of law at trial If no appeal o Defendant sentenced after judge receives information relevant to sentencing

Chapter 4: Introduction to Administrative Law What is administrative law? -

The collection of rules and decisions made by administrative agencies to fill in particular details missing from constitutions and statutes o Any governmental body of the city, county, state or federal government to carry out specific duties

Why and how are agencies created? Enabling legislation -

A statute that specifies the name, functions and specific powers of an administrative agency and grants the agency broad powers for the purpose of serving the public interest, convenience and necessity o Rule making o Investigation of issues o Adjudication of cases

Administrative Law Judge (ALJ) -

A judge who presides over an administrative hearing; may attempt to get the parties to settle but has the power to issue a binding decision Frequently hear cases from the Federal Trade Commission

Types of Administrative Agencies Executive Agency -

An agency that is typically located within the executive branch, under one of the cabinetlevel departments. The agency head is appointed by the president with the advice and consent of the Senate o Appointed and fired by President

Independent Agencies -

An agency that is typically not located within a government department. It is governed by a board of commissioners, who are appointed by the president with the advice and consent of the Senate o May only be fired by cause

How Are Agencies Run? Administrative Procedures Act (APA) -

Federal legislation that places limitations on how agencies are run and contains very specific guidelines on rule making by agencies Under APA, rulemaking may be formal, informal or a hybrid

Informal Rule Making -

A type of rulemaking in which an agency publishes a proposed rule in the Federal Register, considers public comments and then publishes the final rule. 1. Proposed rule published in Federal Register 2. Interested parties can submit written comments in response to proposed rule 3. Agency publishes final rule with effective date in Federal Register

Formal Rule Making

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A type of rulemaking that is used when legislation requires a formal hearing process with a complete transcript; consists of publication of the proposed rules in the Federal Register, a public hearing, publication of formal findings and publication of the final rule, if adopted. o Hearing has to be held and transcribed o All public record

Exempted Rule Making Interpretive rule

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A rule that does not create any new rights or duties but is merely a detailed statement of an agency’s interpretation of an existing law

Policy Statements

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General statement about the directions in which an agency intends to proceed with respect to its rule-making or enforcement activities; has no binging impact on anyone; do not directly affect legal rights and responsibilities

Limitations on Agency Powers 

Political o US Senate must approve agency heads o US congress has power over agency budgets

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Statutory o US Congress by enacting statutes may:  Create or eliminate agencies  Amend enabling legislation  Override agency rules Judicial o Interested parties may challenge administrative rules in court o Court may review agency’s findings of facts, interpretation of rules and scope of agency’s power in making rules Informational o Agencies’ responsibilities regarding public access to information governed by”  Freedom of Information Act  Government in Sunshine Act o Government hearing to be conducted in public form  Privacy Act of 1974

Freedom of Information Act     

Requires that federal agencies publish in Federal Register places where public can access agency information Any individual or business may make a FOIA request Information may be obtained regarding how agency acquires and spends its money Statistics and other information collected by agency on particular topics available Citizens entitles to any records government has about them EXEMPTIONS:  National security  Internal agency matters  Criminal investigations  Financial institutions  Individuals private life

Privacy Act of 1974  

Federal agency may not disclose information about an individual to other agencies/organizations without that individual’s written consent Guarantees right to: o See records about oneself o Amend non-exempt record if inaccurate, irrelevant, untimely or incomplete o Sue government for violations of statute

Chapter 7: Tort Law Introduction to Tort Law Tort

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A violation of another person’s rights or civil wrongdoing that does not arise out of a contract or statute A civil wrongdoing injury to another – giving the other party the right to bring a lawsuit against the wrongdoer to recover compensation for economic and/or physical damages o To provide compensation for injured parties o Maintaining order in society by discouraging private retaliation by injured parties o Give citizens a sense that they live in a just society

Classification of Torts 

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Intentional Torts o A civil wrong resulting from an intentional act committed on the person, property or economic interest of another.  Assault o Situation when one person places another in fear/apprehension if immediate offensive (unwanted) bodily contact  Battery o An intentional, unwanted, bodily contact  Defenses available to defendant in a battery lawsuit  Consent  Self defense  Defense of others  Defense of property  Defamation o The intentional publication (communication to a 3rd party) of a false statement harmful to an individual’s reputation 1. Libel: published in permanent form (magazine, newspaper) 2. Slander: defamation made orally Negligent Torts o A civil wrong doing that occurs when the defendant acts in a way that subjects other people to an unreasonable risk of harm  The defendant is careless, to someone else’s detriment o Usually used to achieve compensation for accidents and injuries  Elements of Negligence o Duty o Breach of duty o Causation (actual and proximate) o Damages Strict-liability Torts o A civil wrong that occurs when the defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes.

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In such situations, defendant is liable for the plaintiff’s damages without any requirement for the plaintiff to pr...