a body of enforceable rules governing relationships among individuals and between individuals and their society.
the belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. This school is the oldest and one of the most significant schools of legal thought.
The U.S. constitution and the constitutions of various states (constitutional law)
statutes, laws, passed by congress and by state legislatures (statutory law)
Regulations created by administrative agencies, such as FDA (regulatory law/administrative law)
case laws (court decisions)
What are the 4 primary sources of law?
of the four primary laws which one takes precedence?
the body of law derived from the U.S. Constitution and the constitutions of various states.
the body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law)
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.
the doctrines and principles announced in cases--governs all areas not covered by statutory law or administrative law and is part of our common law tradition. It includes the aggregate of reported cases that interpret judicial precedents, statues, regulations, and constitutional provisions.
secondary sources of law
a publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review.
The Uniform Commercial Code (UCC)
It facilitates commerce and trade among the states by providing uniform, yet flexible, set of rules governing commercial transactions. It assures businesspersons that their contracts, if validly entered into, normally will be enforced.
all states have adopted it. Some not the complete ucc, but all states have adopted it in part.
which states have adopted the ucc?
the body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to legislature.
there were no statutes or anything. problems were brought to the king and he would render a decision. it was used commonly throughout england. same as judge law because the judge made the decision
Where did common law originate?
statute of limitations
a federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.
a common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
that decisions made by a higher court are binding on lower courts
that a court should not overturn its own precedents unless there is a strong reason to do so
what are the two aspects of stare decisis?
a federal or state government agency estab. to perform a specific function. They are authorized by legislative acts to make and enforce rules in order to administer and enforce the acts. federal: FDA, FCC, homeland security state: wildlife and fisheries, dept. of agriculture
the branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters. it is between individual policies
law that defines and governs actions that constitute crimes. generally, criminal law has t do with wrongful actions committed against society for which society demands redress. the plaintiff will always be the state or government.
when all judges or justices unanimously agree on an opinion
when the decision is not unanimous, but 5 out of 9 judges or justices for example agree with it then it is a what kind of opinion
presents the views of one or more judges who disagree with the majority's decision. This is important because it may form the basis of the arguments used years later in overruling the precedential majority opinion
the study of what constitutes right or wrong behavior.
if everybody acted ethically in the business world then people would not be in jail, lost their savings, etc
Why is ethics important?
duty-based ethical standards
when one makes a decision based on this standard, it is formed based upon religion bc of an obligation to religion. Under this is the principle of rights (the right to own property) and you cannot make a decision based upon someone else's rights....only based on the obligation you have to make it.
an approach to ethical reasoning that evaluates behavior in light of the consequences of that behavior for those who will be affected by it, rather than on the basis of any absolute ethical or moral values. In this reasoning, a "good" decision is one that results in the greatest good for the greatest number of people affected by the decision.
principle of rights
the principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, for example) those who adhere to this "rights theory" believe that a key factor in determining whether a business decision is ethical is how that decision affects the rights of various groups. these groups include firm's owners, employees, the consumers of its products or services, its suppliers, the community in which it does business and the society as a whole.
a decision-making technique that involves weighing the costs of a given action against the benefits of that action.
utilitarianism, because you're thinking about the cost and the affects it will have on other people or the outcome or consequence, not just doing it out of obligation.
the cost-benefit analysis falls under which ethical standard?
corporate social responsibility
the idea that corporations can and should act ethically and be accountable to society for their actions.
if i'm the manager of a corp. I'm going to make my decision based the company as a whole. Looking at everyone that has a stake in the company (shareholders, community, customers, employees and profit)
the idea that the corporation controls so much wealth and power of this country. business in turn has a responsibility ot society to use that wealth and power in socially beneficial ways. companies are judged on how much they donate to social causes, as well as how they conduct their operations with respect to employment discrimination, human rights, environmental concerns, and similar issues.
jurisdiction (over person, property, subject matter) venues standing to sue
What is needed before a case can be heard in federal court?
the authority of a court to hear and decide a specific case. "the power to speak the law" over the person = in personam over the property = in rem
the geographic district in which a legal action in tried and from which the jury is selected.
standing to sue
the requirement that an individual must have a sufficient stake in the controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threatened with injury.
question of fact
In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point. They are decided by the jury in a jury trial (by the judge if there is no jury) original court
question of law
in a lawsuit, an issue involving the application of interpretation of a law. Only a judge, not a jury, can rule on this. appellate court--no evidence, testimony, or new info.
old french phrase meaning " to speak the truth". In legal language, the phrase refers to the process in which the attorneys question prospective jurors to learn about their backgrounds, attitudes, biases, and other characteristics that may affect their ability to serve as impartial jurors. (jury selection)
diversity of citizenship
Under Article III, Section 2, of the U.S. Constitution, a basis for federal district court jurisdiction over a lawsuit between (1.) citizens of different states, (2.) a foreign country and citizens of state or different states, or (3.) citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal district court can take jurisdiction in such cases.
the application of getting into the Supreme court, basically. It is basically an appeal from the supreme court to a lower court asking the lower court to send n the record of the case for review.
no. only time in Louisiana is for first degree murder case.
Is there an automatic right to be heard at the supreme court level?
the counter claim ---- the defendant
the reply-----the plaintiff
What are the major pleadings and who files each one?
requests of documents
physical and mental examination
what are the major forms of discovery?
false, they are written
true or false: interrogatories is a verbal form of discovery?
which form of discovery is both written and verbal?
the testimony of a party to a lawsuit or a witness taken under oath before a trial. verbal ones are questions answered by the doponent to the attorneys and the questions and answers are recorded by an authorized court official and sworn to and signed by the doponent. written ones are taken when witnesses are unable to appear in court
a series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.
the interrogatories are directed to a party to the lawsuit (the plaintiff or defendant), not to a witness, and the party can prepare answers with aid of an attorney.
What is the main difference between written depositions and interrogatories?
motion for judgment on the pleadings--the judge will grant the motion only when there is no dispute over the facts and the issue can be resolved by pleads so there is no trial.
motion for summary judgment--court may make judgment before trial based on outside evidence (sworn statements or other docs)
What are the two pretrial motions and when and why are they filed?
motion to dismiss
a pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action or that there are no other grounds on which a suit should be dismissed. Usually the defendant is party requesting this, either the plaintiff or the court can also request it. it can be made pretrial or post trial.
courts having this are courts of the first instance, or trial courts--that is, courts in which lawsuits begin, trials take place, and evidence is presented. In federal courts, the district courts are the trial courts.
courts having this act as reviewing courts. in general, cases can be brought before these courts only on appeal from an order or judgment of a trial court or other lower court.
the process of resolving a dispute through the court system.
a process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.
the settling of a dispute by submitting it to a disinterested third party (other than a court) who renders a decision that is (most often) legally binding.
a method of settling disputes outside of court by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement.
the provision in Article I, Section 8 of the U.S. Constitution that gives Congress the power to regulate interstate commerce. (business from one state to the next) If there is an activity taking place in one state and that activity has some outside affect on commerce outside the states--that can also now be filed under the commerce clause and take it over by the federal government.
The clause in the constitution that provides the constitution, laws, and treaties of the U.S. are "the supreme law of the land". Under this clause, state and local laws that directly conflict with the federal laws will be rendered invalid
equal protection clause
the provision in the Fourteenth Amendment to the Constitution that guarantees that no state will "deny any person within its jurisdiction the equal protection of the laws". This clause mandates that the state governments must treat similarly situated individuals in a similar manner.
applies to the federal government. guarantees the rights to indictment by grand jury, to due process of law, and to fair payment when private property is taken for public use. it also prohibits compulsory self-incrimination and double jeopardy (trial for the same crime twice)
applies to the state government
due process clause
states that both the 5th and 14th amendments provide that no person shall be deprived "of life, liberty, or property, without due process of law". it applies to "legal persons' such as corporations, as well as to individuals.
guarantees the freedoms of religion, speech, and the press and the rights to assemble peaceably and to petition the government.
procedural due process
requires that any government decision to take life, liberty, or property must be made fairly; that is, the government must give a person proper notice and an opportunity to be heard. tells you the procedure in how to do things
substantive due process
protects an individual's life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them. everything is so vague that you cannot understand it.
fully protected--political speech limited protected-- commercial speech (can't prohibit it but can restrict it) unprotected--obscenity (no protection)
three types of freedom of speech?
the provision in the first amendment that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another. can't pick a religion for us to follow.
free exercise clause
the provision in the first amendment that prohibits the government from interfering with people's religious practices of forms of worship. can't interfere with an individual's choice of religion.
legislative--makes the law executive--enforces the law judicial---interprets the law
what are the three forms of government?
checks and balances
makes sure that one branch of government doesn't have too much power and it doesn't try to exert it's power over the other two.
the court will look at whatever interest the state is trying to promote. if that interest outweighs whatever negative effect that it has on commerce --then the commerce clause will allow it. Basically if the interest looks as though its going to make commerce (trade) better than the clause will allow it.
What is the test to determine that the law will withstand the commerce clause?
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