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Management Exam One
Terms in this set (58)
Set of rules created and enforced by the government.
Ex: EPA and FDA - rules and regulations are set and enforced by the government.
Th philosophy of law
Color of authority
Actions take under the law- using your authority
Law as power
government grants you your rights and you are responsible to follow the laws that are in place. It is used so that people in power stay in power
Law is what the law says. The law is black and white, not subject for interpretation. Disregard the consideration on ethics.
- you have to follow laws but some laws are invalid if by an invalid leader
The belief that the law itself is far less important than the consideration of who is in the position to enforce the law.
- The decision maker, such as a judge, gets to interpret the law (read between the lines)
The idea that humans posses certain inalienable rights that are not the products of the human made laws.
These come first then human made laws are subordinate to those.
We operate under a ...
Free market system
Rule of law
System of published laws under which government and people are bound with a independent judiciary.
- law is generally equally applicable to everyone
- government is not above the law.
The legal right to all of your assets
Ex: patent, copyright, car, land etc.
Your property is belongs to you and not anyone else including the government.
Importance of rule of law to business
1. Creates predictability and certainty.
- People want to know that if you infringe on their patent that they can take you to court for it- they want to be able to predict what the courts are going to do.
2. Provides for peaceful resolution of disputes
3. Provides incentive to maximize assets
4. Attempt to minimize liability
Judge made law. Whenever there is a dispute there needs to one law that is common to all
3 Roles of common law
1. Back binder
2. interpret the law
3. determine if the law is valid in our constitution
Laws passed through legislature. The judge is simply the back binder- shouldn't be doing much interpretation- simply applies the laws to the facts
The area where power may be exercised
"Let the decision stand" - Let the decision be consistent with the prior cases.
Laws that have been passed potentially affect anyone
3 types od public law
Constitutional: based upon the constitution
Administrative: penalties are "handed down" from some recognized source of authority
Criminal Law: for example theft
Defines rights and duties between individuals, corporation company etc., binding on specific parties
examples of private law cases
Contracts: involved in private law agreement (apply to the parties of the contract)
Individual violates a code that has endangered society and therefore faces punishment by the government.
Who brings upon a criminal lawsuit
The rights and duties between individuals or the government and the individual
law that determines right and duties of any case.
- Does a contract exist? did I breach the contract?
The rules, procedure, and processes put in place to determine the substance law fairly
What are the four sources of law
1. Constitution - highest law
3. Administrative Regulation
4. Judicial Decisions
Grant of power spelled out in the constitution
only apply to the activities within the particular state
3 concepts established in the U.S constitution
- 3 branches of federal government
- states retain all power not given to the federal government - of the US constitution does not state that one of the federal branches of government has jurisdiction over a particular area, then that area falls to the states to regulate.
- guarantees basic rights to individuals
Law passed by our elected officials
- Uniform commercial code- adopted in all 50 states - transactions of commission sales
Congress gives them power to create rules
- just as effective as congress passing the laws themselves
- ex: EPA - government gives them the power to create regulations
this is an example of unchecked power
Judges, the common law, and each state developed their own body of common laws
Research other cases that are similar and see how that case was handled. Be consistent - when the court writes and opinion it should serve as a standard
Punish the wrongdoing. - show other people what happens when you commit a crime
- What are you looking to impose at the end of the case- probation, jail etc.
Break of contract
wanting to be compensated:
Compensatory damages : putting the non breaching participant where they would be if the contract went through
Specific performance- not available if money can fit it - order them to give you what you agreed on
• not elected by the government, but by the judges themselves to aid them
• What kind of characteristics would you like to see in a judge who is overseeing your case?
o Educated, experienced, unbiased
Judge- appeal court
Justice - Supreme court
Magistrate- Under a judge but judicial officers
Manages the flow of the trial and is more of gatekeeper, makes sure that the procedures are followed and done correctly, the juror apply the facts
If some appeal the trial courts decision it goes to the...
appellate court and they must take the case
Review the trial courts decision at the request of the people who were part of the case (need to give them everything that they said in the trial court) three judge panel where majority caries the day, can sustain trial courts decision (most often) or reverse the decision ( doesn't happen often) or remand it back to the trial court to fix their mistakes, • could decide that the trial court did not apply the laws or facts correctly
• When appealed after the appellate, the Supreme Court is allowed to turn that down (4 of the 9 justices have to agree to take the case)
o Vast majority never get there so then the appellate court's decision stands
Elected vs. Appointed
• judges are not elected, they are appointed, you can only be removed through the impeachment process which almost never takes place
Most people don't educate themselves when electing judges, so appointment is almost
• You can get a dictator and mean-spirited judge that is there for the rest of his life and there is nothing you can do about it, which can be a downside to appointed judges
• nomination by the president and confirmation by the Senate (no age, citizenship, or qualification requirements)
oversees the overall operation of the federal courts and represents the courts to the other branches of government, when it comes to hearing and deciding the case he has no more power than any
• determine whether you are innocent/guilty, liable/not liable and render a verdict
• Petit jury come from the 6th and 7th amendments
If there is possible jail time then you are entitled to a
Judge provides the law, jurors determine the ...
If the jury has 12 people how many people do you need to agree to come to a verdict
o ALL 12 people must agree, otherwise you have to try the case all over again each witness gets called all over again and all new jurors come to work
o Some states, in civil cases, have changed the results to being 9:3 or 10:2 and it still be okay that the person will be convicted
o 25% of people against the witness being convicted seems a little high and shaky, and more severe cases should be unanimous
• Work for the people in trial
• 1st duty to administration or justice
• Adversarial system
o even though the lawyer knows that his client did in fact commit a murder, his job is to make sure to color the case most favorable for his client, his job is to undermine the witness and make sure that everything they say is correct
• the lawyer making a mistake that cost the defendant's sentence can lead to suing of malpractice
o You get the money that you should have collected
Lawyers do carry malpractice insurance to avoid situations like this because everyone makes
State and federal
o State judicial system and federal judicial system
o Usually a case is in one or the other (state or federal)
o There are 52 separate legal systems in the US with the foundation being the Constitution
3 parts of the court system
o Trial: judge, jury, etc.
o Court of appeals: decisions are appealed to, they review the trial court's decision
o Supreme Court: appeal to this lastly if you are not happy with the results
• There are ONLY three levels of courts
• Only court that hears evidence the jury's job is to determine the facts
o The judge gives the jury the law and oversees the trial to make sure that the case is fair and impartial
• Determines law to be applied
• Small claims court
o Minor financial issues
o Subject to dollar limitation
o You don't need a lawyer to go to small claims court, you can go by yourself
• Review judgment of trial court, HAVE TO go over it
• Parties to litigation entitled to review by a higher court
• No evidence, may be oral arguments between lawyers but no witnesses
• Appellate courts can only overturn facts if they are clearly erroneous
• 3 judges 2 to clear the day
• File writ of certiorari
• Not entitled to 2nd review The supreme court does NOT have to review the appellate court's decision
o The appellate court's decision stands if the Supreme Court does not decide to accept the case
• Rule of 4: 4 judges have to want to take the case
• 5 of the 9 judges are needed to determine the case
• Very few cases are accepted
• What kind of cases are federal courts able to hear?
1. Federal Question Applies to the US Constitution
2. US is a party If the US is a party to the case or the federal government/agency, if the EPA is suing someone
3. Controversy between states If it is between states it has to be in federal court because one court might be in favor of their own state
4. Diversity of Citizenship No plaintiff and no defendant can be from the same state to be in federal court, if so then it is state court, plaintiffs alleged damage has to be over $75,000
• Federal trial court, district court has the same responsibilities as state trial court
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