Study Guide BLAW Exam 1.pdf

Chapter 1 - Law: enforceable rules governing relationships among individuals and between individuals and their society - In the united states, rules consist of written laws and court decisions created by modern legislative jud...

Chapter 1 - Law: enforceable rules governing relationships among individuals and between individuals and their society - In the united states, rules consist of written laws and court decisions created by modern legislative judicial bodies - Rules all have one feature in common: they establish rights, duties, and privileges that are consistent with the values and beliefs of their society Business activities and legal environment - Liability: legally responsible for something - Areas of law that can affect business decision making - Contracts, intellectual property, torts, product liability, sales, internet laws, social media, privacy, environmental laws and sustainability Ethics and business decision making - Business decision makers need to consider not just whether a decision is legal but also whether it is ethical - Ethics: principles governing what constitutes right or wrong behavior - Patent: exclusive right granted to the creator of an invention - Under US law patent owners generally possess that right for 20 years - Patent holders can allow other (licensees) to use their inventions in return for a fee (royalties) - Supreme Court rules that a licensee cannot be forced to pay royalties to a patent holder after the patent has expired - Stare decisis holds that courts should adhere to precedent in order to promote predictability and consistency - The supreme court justified in not follow the doctrine of Stare decisis when prior decision are unworkable or badly reasoned Sources of american law - Primary sources of law: 1. US constitution and the constitutions of the various states 2. Statutory law - including laws passed by congress, state legislatures, or local governing bodies 3. Regulations created by administrative agencies - federal trade commission 4. Case law and common law doctrines - Secondary sources of law - Book and articles that summarize and clarify the primary sources of law - Legal encyclopedias, treatises, articles in law reviews and compilations of law - Courts often refer to secondary sources of law for guidance in interpreting and applying the primary sources of law Constitutional law - Constitutional law: law that is based on the US Constitution and state constitutions - The Constitution is the supreme law of the land - The constitution is the basis of all law in the united states - A law in the violation of the Constitution, if challenged, will be declared unconstitutional and will not be enforced, no matter what its source - Each state in the union has its own constitution - A state constitution is supreme within the states border - unless it conflicts with the US constitution or federal law Statutory law - Statutory law: laws enacted by federal, state, and local legislatures - Federal, state, and local laws cannot violate the US constitution  - Local ordinances: law passed by a local governing unit - Deals with matters not covered by federal or state law - A federal statute applies to all the states - A state statute applies only within the states borders - State laws vary from state to state Administrative law - Administrative law: consists of the rules, orders, and decisions of federal, state, and local administrative agencies - Administrative agency: federal, sate, or local government agency established to perform a specific function Federal agencies - Major independent regulatory agencies at the federal level: - Federal trade commission, the securities and exchange commission, and the federal communications commission Case law and common law doctrines - Case law: the rules of law announced in court decision - Statutes, regulations, constitutional provisions - Governs all areas not covered by statutory law or administrative law - Common law: body of law developed from custom or judicial decision in english and US courts - not attributable to a legislature Courts of law and remedies at law - Remedies: relief given to an innocent party to enforce a right or compensate for the violation of a right - Award as compensation (courts of law): land, items of value, or money - Courts of law: only remedies can be granted are things of value Equitable maxims - Equitable maxims: propositions or general statements of law that have to do with fairness - Defense: argument raised by the defendant - Defendant: party being used - Plaintiff: the suing party - Petitioner (equity proceedings): party that initiates a lawsuit - Respondent (equity proceedings): party being sued - Statutes of limitations: federal or state statute setting the max time period during which a certain action can be brought or certain rights enforced - After the time allowed under a statute of limitations has expired, no lawsuit can be brought Legal and equitable remedies today - Party may now request both legal and equitable remedies in the same action - Trial court judge may grant either or both forms of relief - Party has the right to demand a jury trial in an action at law but not in an action in equity Procedural differences between an action at law and action in equity - initiation of lawsuit - Action at law: filing a complaint - Action in equity: filing a petition - Decision - Action at law: jury or judge - Action in equity: judge - no jury - Result - Action at law: judgment - Action in equity: decree  - Remedy - Action at law: monetary damages or property - Action in equity: injunction, specific performance, or recession The doctrine of stare decisis - Precedent: decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts - When possible judges attempt to be consistent and base their decision of the principles suggested by earlier cases - Stare decisis (to stand on decided cases): common law doctrine, judges are obligated to follow the precedents established in prior decisions within their jurisdictions - Two aspects: 1. a court should not overturn its own precedents unless there is a law compelling reason to do so 2. Decisions made by a higher court are binding on lower courts - Under the doctrine of stare decisis, judges are obligated to follow the precedents established within their jurisdiction Stare decisis and legal reasoning - Legal reasoning: 1) process of evaluating how various laws apply to a given situation 2) process by which a judge harmonizes his or her opinion with he judicial decisions in previous cases - Judges rely on the process of legal reasoning when deciding what law applies to a given dispute and then applying that law to the facts or circumstances of the case - When analyzing cases and case problems, follow the IRAC method Classifications of law  - Substantive law: laws that defines, describes, regulates, and created legal rights and obligations - Many statutes contain both substantive and procedural provisions - Procedural law: law that established the methods of enforcing the rights established by substantive law Finding case law - Two types of court in the United States: 1. Federal courts 2. State courts - Both court systems consist of several levels of courts - Trial courts - Court of appeals or appellate court - State supreme court or United States Supreme Court Chapter 3 - The study of ethics: the study of what constitutes right or wrong behavior The relationship of law and ethics - The government has institutionalized some ethical rights and duties through the passage of laws and regulations - Many laws are designated to prevent fraudulent Gray areas in the law - laws cannot codify all ethical requirements The moral minimum - If people and entities merely comply with the law they are acting at the lowest ethical level that society will tolerate  - Businesspersons must remember that an action that is legal is not necessarily ethical Business as a corporate citizen - Making money - Triple bottom line - a corporation's profits, its impact on people and its impact on the planet Four part analysis (triple bottom line) 1. The legal implications of each decision 2. The public relations impact 3. The safety risks for consumers and employees 4. The financial implications - Religious ethical principles: principles or beliefs about how one should treat others Outcome based ethics : Utilitarianism - Focuses on the consequences of an action - Maximize benefits and minimize harms 1. Stakeholders 2. Cost benefit analysis 3. Societal utility - Utilitarianism: ethically correct behavior is related to an evaluation of the given consequences of a given action on those who will be affected by it Short term profit maximization - Short run: company may increase its profits by continuing to sell a product even though it knows that the product is defective - Long run: because of lawsuits, large settlements, and bad publicity, unethical conduct will cause profits to suffer IDDR - Inquiry: stakeholder, possible results, what do we want to accomplish, facts and possibilities - Discussion: possible actions, what should they do - Decision: consensus plan of action - Review: is it effective, side effects, results may be used in future decisions Chapter 4 - Judicial review: process by which courts decide whether the laws or actions of the legislative and executive branch are constitutional - The United States supreme court established this power in the Marbury v. Madison case - Judicial review is exercised by federal and state courts Judicial requirements - Certain requirements just be met before a lawsuit can be brought before a court - Jurisdiction, venue, and standing to sue Jurisdiction - Jurisdiction: authority of a court to hear a case and decide a specific action - Before any court can hear a case, it must have jurisdiction over the person against whom the suit if brought - Court must also have jurisdiction over the subject matter of the dispute Jurisdiction over persons or property - In personam jurisdiction: over any person or business in a certain geographic area - State trial court normally has jurisdiction over residents of a particular area of the state - A state's highest court has jurisdiction over all residents within the state - In rem jurisdiction: over property that is located within its boundaries Long arm statutes and minimum contacts - Long arm statute: exercise personal jurisdiction over certain out of state defendants based on activities that took place within the state - Before a court can exercise jurisdiction it must be demonstrated that the defendant has sufficient contacts or minimum contacts with the state - Minimum contacts: generally occurs because court has subject matter jurisdiction Jurisdiction over subject matter - Jurisdiction over subject matter: limitation on the types of cases a court can hear - Federal and state court systems have courts of general (unlimited) jurisdiction and limited jurisdiction - Example of a court of general jurisdiction: state trial court or a federal district court - Example of a state court of limited jurisdiction: probate court - Probate courts: state courts that handle only matters relating to the transfer of a person's assets and obligations after death - Example of a federal court limited subject matter jurisdiction: bankruptcy court - Bankruptcy court: federal court of limited jurisdiction that handles only bankruptcy proceedings - In both federal and state court systems, a court subject matter jurisdiction can be limited by: 1. Subject of lawsuit 2. Sum in controversy 3. Whether the case involved a felony or a misdemeanor 4. Whether the proceeding is a trial or an appeal Original and appellate jurisdiction - Original: courts that have the authority to hear a case for the first time (trial and district courts)  - Courts in which lawsuits begin, trials take place and evidence is presented - In federal court systems, the district courts are trial courts - Any court having original jurisdiction normally serves as a trial court - Appellate: courts of appeal and review - generally do not have original jurisdiction - Cases can be brought before appellate courts only on appeal from an order or a judgment of a trial court or other lower courts Jurisdiction of the federal courts - Jurisdiction of the federal court is limited due to the federal government being a government of limited powers - Federal courts have subject matter jurisdiction in two situations: 1. When a federal question is involved 2. When there is diversity of citizenship Federal questions - Whenever a plaintiff's cause of action is based on the US constitution, a treaty or a federal law, a federal question arises - Federal question: question that pertains to the US constitution, acts of congress, or treaties - Federal question provides a basis for federal jurisdiction - Any lawsuit involving a federal question can originate in a federal court Diversity of citizenship - Federal district courts can exercise jurisdiction over cases involving diversity of citizenship - The most common type of diversity jurisdiction requires both of the following 1. Plaintiff and defendant must be residents of different states 2. Dollar amount in controversy must exceed $75,000  - A case involving diversity of citizenship can be filed in the appropriate federal district court - Federal court will apply the relevant state law Exclusive versus concurrent jurisdiction - When both federal and state courts have the power to hear a case, concurrent jurisdiction exists - Concurrent jurisdiction: exists when two different courts have the power to hear a case - Party may choose to bring a suit in a federal or state court - When cases can be tried only in federal courts or only in state courts, exclusive jurisdiction exists - Exclusive jurisdiction: exists when a case can be heard only in a particular court (federal or state court) - Federal courts have exclusive jurisdiction in cases involving: federal crimes, bankruptcy, most patent and copyright claims, suits against the united states, and some areas of admiralty law - State courts have exclusive jurisdiction over certain subjects - divorce and adoption The sliding scale standard - The sliding scale standard: determines when courts can exercise personal jurisdiction over an out of state defendant based on the defendants web activities - Three types of internet business contacts and outlines the following rules for jurisdiction: 1. When the defendant conducts substantial business over the internet (contracts and sales) jurisdiction is proper 2. When there is some interactivity through a website, jurisdiction may be proper - up to the courts to decide how much online interactivity is enough to satisfy the minimum contacts requirement  3. When a defendant merely engages in passive advertising on the web - jurisdiction is never proper Standing to sue - Standing to sue: requirement that an individual must have a sufficient state in a controversy before they can bring a lawsuit - The plaintiff must demonstrate that they have been either injured or threatened with jury - Standing can be broken down into 3 elements: 1. Harm - an invasion of a legally protected interests (controversy must be real) 2. Causation - must be a causal connection between the conduct complained of and the injury 3. Remedy - favorable court decision will remedy the injury suffered The federal court system - Three-tiered model consisting of: 1. US district courts (trial courts of general jurisdiction) and various courts of limited jurisdiction 2. US courts of appeals (intermediate courts of appeals) 3. The United States Supreme Court The state court systems - State courts may include: 1. Trial courts of limited jurisdiction 2. Trial courts of general jurisdiction 3. Appellate courts (intermediate appellate courts) 4. State highest court General jurisdiction - State trial courts of general jurisdiction have jurisdiction over a wide variety of subject, including civil disputes and criminal prosecutions  - In some states, trial courts of general jurisdiction may hear appeals from courts of limited jurisdiction Limited jurisdiction - Might include local municipal court (separate traffic courts and drug courts) and domestic relations courts (handle divorce and child custody disputes) Appellate or reviewing courts - Generally courts of appeals do not conduct new trials in which evidence is submitted to the court and witnesses are examined - Appellate court hears arguments from attorneys and determines whether the trial court committed an error - Cannot directly observe witnesses gestures, demeanor, and other nonverbal behavior during the trial US district courts - At the federal level, the equivalent of a state trial court of general jurisdiction is the district court - US district courts have original jurisdiction in matters involving a federal question and concurrent jurisdiction with state courts when diversity jurisdiction exists - Federal cases typically originate in district courts The United States Supreme Court - Can review any case decided by any of the federal courts of apples - Has appellate authority over cases involving federal questions that have been decided in the state courts - The final authority on the constitution and federal law Appeals to the supreme court - To bring a case before the supreme court, a party requests the court to issue a writ of certiorari  - Writ of certiorari: order issued by the supreme court to a lower court requiring the latter to send it the record of the case for review ADR process - Negotiation - Mediation: propose collusion to the dispute but does not make decision - Arbitration: uses neutral third party (typically single person, binding or nonbinding by agreement or statute) Chapter 5 Stages of litigation 1. Pretrial 2. Trial 3. Porttrial Attorney fees 1. Fixed fees 2. Hourly fees 3. Contingency fees Pretrial procedures - Pleadings (plaintiff complaint and defendants response) - Pretrial motions: motion to dismiss, motion for judgment on the pleadings, motion for summary judgment, motion to compel discovery, motion to strike - Discovery (gathering of evidence) - Pretrial conference - Jury selection (voir dire) Trial procedures - Opening statements  - Examination of witnesses - Rules of evidence (hearsay evidence is not admissible) - Trial motions: motion for a judgment as a matter of law (motion for a directed verdict) - Closing argument, jury instructions, and verdict (decision) Posttrial - Motions: motion for a new trial, motion for judgment NOV - The appeal (must have legitimate grounds to file an appeal (some legal error), filing appeal, appellate review, further review Requesting court assistance in collecting the judgment - Writ of execution: order direction the sheriff to seize and sell the defendants nonexempt assets or property