What economic system is better than any other ever created?
-Regulates conduct of individuals, businesses, organizations, etc.
-Protects people and their property against unwanted interference
-Must be obeyed & followed by citizens who are subject to sanctions and other legal consequences
What is the most important function of law for business?
What is the most important quality of the law?
Its fairness. The US legal system is one of the most comprehensive, fair, and democratic systems of law ever developed and enforced.
Natural Law School
postulates that law is based on what is 'correct.' it emphasizes a moral theory of law - that is, law should be based on morality and ethics.
Thomas Jefferson & James Madison
A school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be. (precedence)
John Roberts, Clarence Thomas, Ronald Reagan
Law is shaped by logic.
A school of legal thought that views the law as a tool for promoting justice in society.
Barack Obama, Hilary Clinton, Ruth Bader Ginsburg, FD Roosevelt
Law is just an instrument of a ruling class. To change the law you must change the ruling class.
Adolf Hitler, Hugo Chavez, Stalin, FIdel Castro
Critical Legal Studies School
Legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo. Judges make decisions based off what they believe is right/wrong.
Law and Economics School (Chicago School)
Promoting market efficiency should be the central concern of legal decision making.
English Common Law
The basis of a court system for justice. The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent to the facts before them.
the philosophy or science of law
-emphasized form over substance
-only relief was monetary awards for damages
Chancery (Equity) Courts
-inquired into the merit of a case
-remedies were shaped to fit each specific situation
"Law Merchant"; a courts system which used laws based on the common trade practices and usage of the Middle Ages.
What is the only state that doesn't use English Common Law?
Civil Law System
A system of law derived from that of the Roman Empire and based on a code rather than case law; the predominant system of law in the nations of continental Europe and the nations that were once their colonies. (Court decisions do not have the force of law)
Sources of Law in the U.S.
Constitution, Treaties, Executive Orders, Regulations & Orders of Administrative Agencies, Judicial Decisions
What is the purpose of the Doctrine of Stare Decisis?
uniformity, efficiency, predictability, flexibility
Limited-Jurisdiction State Trial Courts
include traffic, juvenile, family law, small claims courts
General-Jurisdiction State Trial Courts
-divided into Criminal & Civil
-Find facts, apply the law
Intermediate State Appellate Courts
Review trial court record and determine if errors were made at trial that require reversal or modification. No new evidence or testimony is presented.
Highest State Court
Usually State Supreme Court. Appellate; decisions are usually final unless appealed to US Supreme Court.
Special Federal Courts
US Tax Court, US Court of Federal Claims, US Court of International Trade, US Bankruptcy Court, US Court of Appeals for Armed Serviced, US Court of Appeals for Veterans' Claims
US District Courts
the federal court system's trial courts of general jurisdiction, 94 courts, at least 1 district in each state.
US Court of Appeals (Circuit Courts)
An appellate court. Reviews cases from lower fedreal courts. There are currently 13 judicial circuits, Each of which has a US Court of Appeals. Usually uses a 3-judge panel.
US Supreme Court
-9 justices (1 is chief justice)
-Highest court in the land
-Can hear appeals from Fed. Circuit Courts, Fed. District Courts, Special Fed. Courts, Highest State Courts
Petition for Certiorari
A petition asking the Supreme Court to hear one's case.
Writ of Certiorari
Order by the Supreme Court directing a lower court to send up the records of a case for review
A decision made by the Supreme Court that has no dissent. A Unanimous decision by the Court is 9-0. Decision is used as precedent.
A majority of the justices agree as to the outcome and reasoning used to decide a case. Precedent for later cases. (Ex. 5-4)
In the deciding a case, this is when a majority of the justices agree as to the outcome of a case but not as to the reasoning for reaching the outcome. It settles the case but is not precedent for later cases. (Ex. 5-4=>3-2-4)
can happen if not all justices sit for the case, lower court decision is affirmed - not precedent for a case (Ex. 4-4)
justice agrees with decision but has different reasoning
a statement written by a justice who disagrees with the majority opinion, presenting his or her opinion
Federal Question Cases
cases concerning the Constitution, federal law, or treaties over which the federal courts have jurisdiction as described in the Constitution
Diversity of Citizenship Cases
cases that involve citizens of different states or a citizen of a state and of a foreign country; the amount of money in dispute exceeds $75,000
What two business-related case types are exclusively under federal jurisdiction?
Bankruptcy and Copyright Cases
When do state courts have jurisdiction?
When the federal courts do not.
Standing to Sue
the requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit
In Personam Jurisdiction
Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.
In Rem Jurisdiction
jurisdiction to hear a case because of jurisdiction over the property of the lawsuit
Quasi In Rem Jurisdiction
Jurisdiction allowed a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching property of the defendant located in another state.
Full Faith and Credit Clause
states have to respect and enforce the judicial rulings of other states.
A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "minimum contacts" with that state for the statute to apply.
the jurisdiction where a trial will be held
Change of Venue Request
When a defendant asks to be tried in another place on the grounds that the people of the locality are so prejudiced in the case that an impartial jury cannot be drawn.
Forum Selection Clause
a contract provision that designates a certain court to hear any dispute concerning nonperformance of the contract
School of Jurisprudential Thought exhibited by District Court in Carnival vs Shute Case
School of Jurisprudential Thought exhibited by 9th Circuit Court of Appeals in Carnival vs Shute Case
School of Jurisprudential Thought exhibited by US Supreme Court in Carnival vs Shute Case
Law & Economics School
a contract provision that designates a certain state's law or country's law that will be applied in any dispute concerning nonperformance of the contract
the process of bringing, maintaining, & defending a lawsuit
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.
the principle pleading by the defendant in response to plaintiff's complaint
Cross-Complaint and Reply
the defendant sues the plaintiff for damages or some other remedy. Original plaintiff must file and reply and serve on defendant
a proceeding that permits a person to enter into a lawsuit already in progress
Multiple lawsuits stemming from the same situation consolidated into one.
Statute of Limitations
a statute prescribing the time period during which legal action can be taken
Oral testimony given by party or witness before trial
series of formal, written questions addressed to a party for discovery purposes
Production of Documents
a request by one party to another party to produce all documents relevant to the case prior to the trial
Physical or Mental Examination
a court-ordered examination of a party to a lawsuit before trial to determine the extent of the alleged injuries
Motion for Judgment on the Pleadings
A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
Motion for Summary Judgment
A motion that may be filed by either party in which the party asks the court to enter judgment in his or her favor without a trial because evidence developed shows there is no triable issue of fact and case can be decided as a matter of law.
What are the factors of a Cost-Benefit Analysis of a lawsuit?
1. Probability of winning or losing
2. Amount of money to be won or lost
3. Lawyer's fees, other costs
4. Loss of time
a hearing before a trial in order to facilitate the settlement of a case
What percentage of cases are settled pre-trial?
Who can appeal in a criminal case?
only the defendant
Who can appeal in a civil case?
the plaintiff or defendant
act of discussing an issue between two or more parties with competing interests in order to reach an
The process in which parties involved in a dispute allow an impartial party to settle their differences
the use of a neutral third party, called a mediator, who encourages both sides in a dispute to continue negotiating and often makes suggestions for resolving the dispute
Method of nonbinding dispute resolution involving an interested third party who tries to help disputing parties reach a mutually agreeable decision; also known as mediation.
An abbreviated version of a case that allows parties to present evidence and arguments to a panel that acts as a jury and that has no authority to make a binding decision but that can pose questions and offer an opinion on the outcome of a trial based on the evidence
Court-appointed referee who conducts a private trial and renders a judgment. Parties reserve their right to appeal.
What are the 2 major functions of the US Constitution?
1. Creates the three branches of government
2. Protects individual rights by limiting the government's ability to restrict those rights
powers given to the federal government by the Constitution
What Article of the Constitution establishes the legislative branch?
What Article of the Constitution establishes the executive branch?
What Article of the Constitution establishes the judicial branch?
Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits.
The concept that federal law takes precedence over state or local law.
Most important clause in Constitution for business. The section of the Constitution in which Congress is given the power to regulate trade among the states and with foreign countries.
commerce between two or more states which can be regulated by the federal government
State Police Power
States retain the power to regulate intrastate business activity and much interstate business activity that occurs within their borders (Intrastate commerce).
Dormant Commerce Clause
-state/local laws are unconstitutional if placing undue burdens on interstate commerce
-state can regulate an area of interstate commerce only if the federal government has chosen to not regulate it
Freedom of Speech includes what kinds of speech?
oral, written, symbolic
Fully Protected Speech
Speech that the government cannot prohibit or regulate. (Ex. political speech)
Limited Protected Speech
Govt. cannot forbid this type of speech but can subject it to time, place and manner restrictions. (Ex. offensive speech and commercial speech.)
Speech that may be forbidden by government. (Ex. dangerous speech, fighting words, defamatory speech, child pornography, obscene speech)
Clause in the First Amendment that says the government may not establish an official religion.
Free Exercise Clause
First Amendment requirement that law cannot prevent free exercise of religion
Equal Protection Clause
Clause in the Fourteenth Amendment that forbids any state to deny to any person within its jurisdiction the equal protection of the laws.
Strict Scrutiny Test
a test applied by the court when a classification is based on race (suspect class)
Intermediate Scrutiny Test
Test that is applied to classifications based on sex or age (protected class)
Rational Basis Test
Applied when classifications are not based on suspect or protected class
Due Process Clause
14th amendment clause stating that no state may deprive a person of life, liberty, or property without due process of law
Substantive Due Process
Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable. Could any reasonable person understand the law?
Procedural Due Process
The constitutional requirement that government must follow proper legal procedures before a person can be legitimately punished for an alleged offense.
Privileges and Immunities Clause
a state cannot discriminate against someone from another state or give its own residents priveleges