Flashcards – Business Law Chapter 1

Consist of enforceable rules governing relationships among individuals and between individuals and their society. Establish rights, duties and privileges that are consistent with the values and beliefs of a society or its ruling group.

Makes the laws

English Law

A document that establishes the law on a particular issue, such as the constitution, a statute, an administrative role, or a court decision

Primary Source of Law

A publication (encyclopedia, legal treatise, law review articles, etc.) that summarizes or interprets the law.

1. Constitutional Law The law as expressed in the U.S. Constitution and the various state constitutions. The U.S. Constitution is the supreme law of the land. State constitutions are supreme within state borders to the extent that they do not violate the U.S. Constitution or a federal law. 2. Statutory Law Laws or ordinances created by federal, state, and local legislatures and governing bodies. None of these laws can violate the U.S. Constitution or the relevant state constitutions. Uniform laws, when adopted by a state legislature, become statutory law in that state. 3. Administrative Law The rules, orders, and decisions of federal or state government administrative agencies. Federal administrative agencies are created by enabling legislation enacted by the U.S. Congress. Agency functions include rulemaking, investigation and enforcement, and adjudication. 4. Case Law and Common Law Doctrines Judge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies. The common law—the doctrines and principles embodied in case law—governs all areas not covered by statutory law or administrative law.

The rules under which a government will operate.

A regulation enacted by a city or county legislative body that becomes part of that state's statutory law.

Statutory law

A reference to a publication in which a public authority - such as a statute or a court decision - or other source can be found.

A reference to a publication in which a legal authority can be found

A model law created by the National Conference of Commissioners on Uniform State Law for the states to consider enacting into statute. Uniform law promotes uniformity in state laws on all subjects where uniformity is deemed desirable and practicable. Each state has the option of adopting or rejecting all or part of the uniform law. Only If a state legislature adopts a uniform law does that law become part of the statutory law of that state.

Administrative law

A federal, state, or local government agency created by the legislature to perform a specific function, such as to make and enforce rules pertaining to the environment.

Department of the Army United States Department of Homeland Security Office for Civil Rights (OCR) United States Department of Homeland Security

A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created.

To render a judicial decision. adjudication is the trial-like proceeding in which an administrative law judge hears and resolves disputes involving an administrative agency's regulations.

The procedure used by administrative agencies in administering the law.

The process by which an administrative agency formally adopts a new regulation or amends an old one.

The Occupational Safety and Health Act authorized the Occupational Safety and Health Administration (OSHA) to develop and issue rules governing safety in the workplace. When OSHA wants to formulate rules regarding safety in the steel industry, it has to follow specific procedures outlined by the APA.

An administrative agency's rule that carries the same weight as a congressionally enacted statute.

A nonbinding rule or policy statement issued by an administrative agency that explains how it interprets and intends to apply the statutes it enforces.

One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.

The rules of law announced in court decisions. Case law interpret statutes, regulations, judicial precedents, constitutional provisions, and other case law.

1. Common Law Law that originated in medieval England with the creation of the king's courts, or curiae regis, and the development of a body of rules that were common to (or applied in) all regions of the country. The body of law development from custom or judicial decisions in English and United States courts, not attributable to a legislature. 2. Stare Decisis A doctrine under which judges "stand on decided cases"—or follow the rule of precedent—in deciding cases. Stare decisis is the cornerstone of the common law tradition. 3. Remedies A remedy is the means by which a court enforces a right or compensates for a violation of a right. Courts typically grant legal remedies (monetary damages) but may also grant equitable remedies (specific performance, injunction, or rescission) when the legal remedy is inadequate or unavailable.

The common law

A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.

That court only

Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.

Any legal authority or source of law that a court may look to guidance but on which it need not rely in making its decision. Persuasive authorities include cases from other jurisdictions and secondary sources of law.

Elena is injured because of Rowan's wrongdoing. If Elena files a lawsuit and is successful, a court can order Rowan to compensate Elena for the harm by paying her a certain amount. The compensation is Elena's remedy.

In its broadest sense, equity is fairness. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of Common Law.

A plaintiff might ask a court of equity to order the defendant (the person against whom a lawsuit is brought) to perform within the terms of a contract. A court of law could not issue such an order. A court of equity, however, could issue a decree for specific performance—an order to perform what was promised. A court of equity could also issue an injunction, directing a party to do or refrain from doing a particular act. In certain cases, a court of equity could allow for the rescission (cancellation) of the contract, thereby returning the parties to the positions that they held prior to the contract's formation.

One who initiates a lawsuit.

One against whom a lawsuit is brought, or accused person in a criminal proceeding.

The law may be broken down according to several classification systems, such as substantive or procedural law, federal or state law, and private or public law. Two broad classifications are civil and criminal law, and national and international law. Cyberlaw is not really a classification of law but a term that is used for the growing body of case and statutory law that applies to Internet transactions.

A state law that provides employees with the right to workers' compensation benefits for any on-the-job injuries they sustain is a substantive law because it creates legal rights (workers' compensation laws will be discussed in Chapter 18). Procedural laws, in contrast, establish the method by which an employee must notify the employer about an on-the-job injury, prove the injury, and periodically submit additional proof to continue receiving workers' compensation benefits. Note that a law concerning workers' compensation may contain both substantive and procedural provisions.

Law that defines, describes, regulates, and creates legal rights and obligations.

Law that establishes the methods of enforcing the rights established by substantive law.

An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.

The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.

A system of law derived from Roman law that is based on codified laws (rather than on case precedents).

The branch of law that defines and punishes wrongful actions committed against the public.

If a seller fails to perform a contract with a buyer, the buyer may bring a lawsuit against the seller. The purpose of the lawsuit will be either to compel the seller to perform as promised or, more commonly, to obtain monetary damages for the seller's failure to perform.

Law that pertains to a particular nation (as opposed to international law).

The law that governs relations among nations. National laws, customs, treaties, and international conferences and organizations are generally considered to be the most important sources of international law.

The U.S. Constitution established a federal form of government, in which government powers are shared by the national government and the state governments. At the national level, government powers are divided among the legislative, executive, and judicial branches. 1. The Commerce Clause The commerce clause expressly permits Congress to regulate commerce. Over time, courts expansively interpreted this clause, thereby enabling the national government to wield extensive powers over the economic life of the nation. A. Today, the commerce power authorizes the national government, at least theoretically, to regulate almost every commercial enterprise in the United States. In recent years, the Supreme Court has reined in somewhat the national government's regulatory powers under the commerce clause. B. The Tenth Amendment reserves to the states all powers not expressly delegated to the national government. Under their police powers, state governments may regulate private activities in order to protect or promote the public order, health, safety, morals, and general welfare. C. If state regulations substantially interfere with interstate commerce, they will be held to violate the "dormant commerce" clause of the U.S. Constitution. The positive aspect of the commerce clause, which gives the national government the exclusive authority to regulate interstate commerce, implies a "dormant" aspect—that the states do not have this power. 2. The Supremacy Clause The U.S. Constitution provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." Whenever a state law directly conflicts with a federal law, the state law is rendered invalid.

A system of government in which the states form a union and the sovereign power is divided between the central government and the member states.

The division of the U.S. government into three different branches so that each unit is separate and independent - the executive, legislative and judicial branches.

Check and Balances allows each branch to limit the actions of the other two branches, thus preventing any one branch from exercising too much power. 1. The Legislative Branch (Congress) can enact the Law, but the Executive Branch (the President) has a Constitutional authority to veto that Law. 2. The Executive Branch is responsible for foreign affairs, but treaties whit foreign governments require the advice and consent of the Senate. 3. Congress determine the jurisdiction of the federal courts, and the President appoints federal Judges (with the advice and consent of the Senate), but the Judicial Branch has the power to hold actions of the other two branches Unconstitutional.

Each branch to limit the actions of the other branches

Commerce clause

Congress to regulate commerce

The presence of the Commerce Clause, has been held implicitly to limit the power of states to regulate interstate commerce. A law is discriminatory under the Dormant Commerce Clause if it discriminates against interstate commerce and is VOID unless they advance a legitimate state interest that cannot be advanced through a reasonable, nondiscriminatory alternative

Tri-M Group, LLC, a Pennsylvania electrical contractor, was hired to work on a veteran's home in Delaware that was partially state funded. Delaware's regulations allowed contractors on state-funded projects to pay a lower wage rate to apprentices if the contractors had registered their apprenticeship programs in the state. Out-of-state contractors, however, were not eligible to pay the lower rate unless they maintained a permanent office in Delaware. Tri-M filed a suit in federal court claiming that Delaware's regulations discriminated against out-of-state contractors in violation of the dormant commerce clause. The state argued that the regulations were justified as part of its program to regulate apprenticeships and thus protect the welfare of apprentices. The court, however, held that the state could have used other means to accomplish that goal. The regulations were discriminatory and thus violated the dormant commerce clause.

Powers possessed by the states to protect or promote the public order, health, safety, morals, and general welfare.

The Supremacy Clause

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws

The Bill of Rights, which consists of the first ten amendments to the U.S. Constitution, was adopted in 1791 and embodies a series of protections for individuals—and, in some instances, business entities—against various types of interference by the federal government. Today, most of the protections apply against state governments as well. 1. Freedom of speech Under the First Amendment, speech, including symbolic speech, is given the fullest possible protection by the courts. Corporate political speech and commercial speech also receive substantial protection under the First Amendment. Certain types of speech, such as defamatory speech and lewd or obscene speech, are not protected under the First Amendment. Government attempts to regulate unprotected forms of speech in the online environment have, to date, met with numerous challenges. 2. Freedom of religion Under the First Amendment, the government may neither establish any religion (the establishment clause) nor prohibit the free exercise of religion (the free exercise clause). 3. Due process Both the Fifth and the Fourteenth Amendments provide that no person shall be deprived of "life, liberty, or property, without due process of law." Procedural due process requires that any government decision to take life, liberty, or property must be made fairly, using fair procedures. Substantive due process focuses on the content of legislation. Generally, a law that limits a fundamental right violates substantive due process unless the law promotes a compelling state interest, such as public safety. 4. Equal protection Under the Fourteenth Amendment, a law or action that limits the liberty of some persons but not others may violate the equal protection clause. Such a law may be upheld, however, if there is a rational basis for the discriminatory treatment of a given group or if the law substantially relates to an important government objective.

Business and the Bill of Rights

The first ten amendments to the U.S. Cs

As a form of expression, Nam has gang signs tattooed on his torso, arms, neck, and legs. If a reasonable person would interpret this conduct as conveying a message, then it might be a protected form of symbolic speech.

Some high school students held up a banner saying "Bong Hits 4 Jesus" at an off-campus but school-sanctioned event. The majority of the Court ruled that school officials did not violate the students' free speech rights when they confiscated the banner and suspended the students for ten days. Because the banner could reasonably be interpreted as promoting drugs, the Court concluded that the school's actions were justified. Several justices disagreed, however, noting that the majority's holding creates a special exception that will allow schools to censor any student speech that mentions drugs.

As a form of expression, Nam has gang signs tattooed on his torso, arms, neck, and legs. If a reasonable person would interpret this conduct as conveying a message, then it might be a protected form of symbolic speech.

A test of constitutionality that requires the government to have convincing reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes between people based on a suspect trait.

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.

The establishment clause

Mount Soledad is a prominent hill near San Diego. There has been a forty-foot cross on top of Mount Soledad since 1913. In the 1990s, a war memorial was constructed next to the cross that included six walls listing the names of veterans. The site was privately owned until 2006, when Congress authorized the property's transfer to the federal government "to preserve a historically significant war memorial." Shortly after that, Steve Trunk and the Jewish War Veterans filed lawsuits claiming that the cross display violated the establishment clause because it endorsed the Christian religion. A federal appellate court agreed, finding that the primary effect of the memorial as a whole sent a strong message of endorsement and exclusion (of non-Christian veterans). The court noted that although not all cross displays at war memorials violate the establishment clause, the cross in this case physically dominated the site, was originally dedicated to religious purposes, had a long history of religious use, and was the only portion visible to drivers on the freeway below

The provision in the First amendment that prohibits the government from interfering with people's religious practices or forms of worship.

According to the Muslim faith, a woman should not appear in public without a scarf, known as a hijab, over her head. Due to public safety concerns, many courts today do not allow the wearing of any headgear (hats or scarves) in courtrooms. In Douglasville, Georgia, a Muslim woman was prevented from entering a courthouse with her husband because she refused to remove her scarf. As she left, she uttered an expletive at the court official and was arrested and brought before the judge, who ordered her to serve ten days in jail. Similar incidents have occurred in other states.

Both the Fifth and the Fourteenth Amendments provide that no person shall be deprived of "life, liberty, or property, without due process of law." Procedural due process requires that any government decision to take life, liberty, or property must be made fairly, using fair procedures. Substantive due process focuses on the content of legislation. Generally, a law that limits a fundamental right violates substantive due process unless the law promotes a compelling state interest, such as public safety.

The fifth amendment in the fourteenth amendment Due Process

The provisions in the Fifth and Fourteenth amendments that guarantee that no person shall be deprived of life, liberty, or property without due process of law. State constitutions often include similar clauses.

In most states, a driver's license is construed as a property interest. Therefore, the state must provide some sort of opportunity for the driver to object before suspending or terminating the person's license.

If a law prohibits all advertising on the sides of trucks, it raises a substantive due process question. If the law makes an exception to allow truck owners to advertise their own businesses, it raises an equal protection issue.

The provision in the Fourteenth amendment that requires state governments to treat similarly situated individuals in a similar manner.

If a law or action prohibits or inhibits some persons from exercising a fundamental right, the law or action will be subject to "strict scrutiny" by the courts. A classification based on a suspect trait—such as race, national origin, or citizenship status—will also be subject to strict scrutiny. Under this standard, the classification must be necessary to promote a compelling government interest. Compelling state interests include remedying past unconstitutional or illegal discrimination, but do not include correcting the general effects of "society's discrimination."

For a city to give preference to minority applicants in awarding construction contracts, it normally must identify past unconstitutional or illegal discrimination against minority construction firms. Because the policy is based on suspect traits (race and national origin), it will violate the equal protection clause unless it is necessary to promote a compelling state interest.

Another standard, that of "intermediate scrutiny," is applied in cases involving discrimination based on gender or legitimacy. Laws using these classifications must be substantially related to important government objectives.

Americans are increasingly becoming concerned about privacy issues raised by Internet-related technology. The Constitution does not contain a specific guarantee of a right to privacy, but such a right has been derived from guarantees found in several constitutional amendments. A number of federal statutes protect privacy rights. Privacy rights are also protected by many state constitutions and statutes, as well as under tort law.

In matters of economic and social welfare, a classification will be considered valid if there is any conceivable "rational basis" on which the classification might relate to a legitimate government interest. It is almost impossible for a law or action to fail the rational basis test.

An important government objective is preventing illegitimate teenage pregnancies. Because males and females are not similarly situated in this regard—only females can become pregnant—a law that punishes men but not women for statutory rape will be upheld even though it treats men and women unequally.

A city ordinance that in effect prohibits all pushcart vendors, except a specific few, from operating in a particular area of the city will be upheld if the city offers a rational basis—such as reducing traffic in that area—for the ordinance.

An official directive from the president, prime minister or other leader.

Federal supremacy means that federal law takes precedence over all state and local law. Federal supremacy establishes that state laws must not conflict with federal laws. If there is a conflict among state and federal laws, then federal law supersedes state law.

Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government governs issues that affect the entire country, and smaller subdivisions govern issues of local concern. Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other. The United States has a federal system of governance consisting of the national or federal government, and the government of the individual states.

A legal instrument that is the result of a court decision that is designed to prevent a significant or irreparable harm from occurring. For example, a company may be prevented from demolishing a building. An injunction may be permanent or temporary pending a further hearing on the matter, when it is likely that the plaintiff will prevail on the merits of the claim for an injunction. An injunction may also be positive in nature, such as the return of specific property to a prevailing party.

The science or philosophy of law. The study of Law

Law or regulation which protects the right of privacy of individuals.

A public law is one in which all persons have an interest.

A court-ordered correction of a written contract so that it reflects the true intentions of the parties.

Rescission or the act of rescinding is where a contract is canceled annulled or abrogated by the parties or one of them. In Spanish law nullity is divided into absolute and relative. The former is that which arises from a law whether civil or criminal the principal motive for which is the public interest; and the latter is that which affects only certain individuals.

An equitable remedy in which a court orders the parties to perform as promised in the contract. This remedy normally is granted only when the legal remedy (monetary damages) is inadequate.

A written law passed by Congress or a state legislature and signed into law by the President or a state governor. n fairly rare circumstances, a legislative act can become law without the approval of the head of the executive branch of government.) Statutes are often gathered into compilations called "codes," large sets of books that can be found in many public and all law libraries, or sometimes on the Internet.

A formal international agreement negotiated between two nations or among several nations. In the United States, all treaties must be approved by the Senate.

Laws that are designed to be adopted generally by the states so that the law in one jurisdiction is the same as in another jurisdiction.

The failure to perform a legal obligation.

- Majority Opinion - Concurring Opinion - Dissenting Opinion - Plurality Opinion - Per Curiam Opinion

A court opinion that represents the views of the majority (more than half) of the judges or justices deciding the case.

A court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority's opinion.

A court opinion that presents the views of one or more judges or justices who disagree with the majority's decision.

A court opinion that is supported by the largest number of the judges or justices hearing the case, but less than half of the total number.

A court opinion that does not indicate which judge or justice authored the opinion.

Cases from other jurisdictions, social customs, and public policy

A treaty, the U.S. Constitution, or a federal law

The federal court system does not include

The federal court system does not include

The federal court system does not include