Business Law Test Questions – Flashcards
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Blue Laws
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Sunday laws established by puritans
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Prohibition
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1920-1933 no alcohol
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Sexual Mores
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Adultery/fornication illegal until 1993
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Anachronistic Laws
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Unusual laws that have not been removed/appealed
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Law is Complex
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1) pure quantity of laws made every day are a problem 2) courts and legislative bodies contribute to this
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Plessy vs Ferguson
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(1896) "Separate but equal" laws were okay
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Brown vs Board of Education
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(1954) overturned segregation of races, integrate races
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Bad Laws
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odious, repulsive or extremely distasteful
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Jim Crow Laws
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1880s-1950s to assign a group of people as inferior
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Laws of Nazi Germany
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6 Million people exterminated
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Relocation of Japanese-Americans during WWII
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President Roosevelt moved japanese americans from Cali to central USA off the coast to "avoid an attack" - reparations made in 1990
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Common Law
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Decisions made by judges in cases - customs and traditions that are unwritten, judge made laws
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Case of 1st Impression
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First case of its kind
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Precedent cases
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what people think is right decides the case and sets a precedent. Legislator can pass a law to change the decision
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Statutory Law
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(written law) formal written enactment of a legislative body
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Constitution
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US + 50 state constitutions, fundamental set of principles/framework written by lawyers in 1787
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Treaty
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Formal written agreement between US and foreign nations
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Substantive law
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Rules used by courts to settle disputes, limits or define rights
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Procedural or Adjective law
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Legal machinery that gives affect to substantive law
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Public Law
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Establishes responsibilities owed like environmental laws or labor laws
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Private Law
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Establishes rights among private firms & individuals
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Who is responsible for Rule Making
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Legislative bodies, judges, administrative agencies
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Adjudicating Laws
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Deciding cases and settling disputes in trial courts
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Executing Laws
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Carrying out / enforcing law (federal = prez, state = governor, local = police)
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Uniform Commercial Code
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49/50 states adopt uniform laws that cover sales, warranties, checks, etc
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Partnership Act
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Establishing a general partnership - same process everywhere
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Conflict of Laws
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deciding the proper law to apply, resolved by a system
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Ancient Legal Systems
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Egyptian, Babylonian, Chinese, Hebrew, Greek, Roman. Early law was tied with religion (Hebrew based on mosaic, Islam no distinction between law and religion)
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Role of religion in US Govt
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Religion and Govt are separate, state law in the event of a breach
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Babylonian Systems
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business oriented commercial society
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Code of Hammurabi
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1900 B.C first comprehensive oldest known written code of law, farsighted, with provisions (property deeds, royal permit, wage and price controls)
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Greek Law
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No codes like Babylonians, Democracy "rule by people" - practical ideas recording commercial transactions, land recording for ownership
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Roman System Importance
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Courts, Banking systems, Bankruptcy system, Life insurance, political system
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Justinians code
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529 CE compilation of roman law and legal principles as well as the areas governed by rome
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Dark Ages
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When roman laws didn't exist
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Common Law Systems
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Exist any place colonized by the British - Judges can make decisions
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Hero of common law system
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Lawyers & Judges
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Origins of common law
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Legal battles in the courtroom
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Hundred Moot
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(Medieval England) Civil and criminal cases. Judges = 100 land owners, met 1x per month
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Shire moot
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(Medieval England) appeal court with churches and secular officials as judges
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Ordeal trial
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Priest appealing to God
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Compurgation Trial
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People testify about character of criminal
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Jurisdiction
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Power of a court to decide a case
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Problems with early courts
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Judges would hang around the King and be influenced
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Magna Carta importance
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Court meets at a regular time and place
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Yearbooks
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Decisions on cases recorded into books
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Principle of "stare decisis"
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Principle established in a prior case to be followed by a court unless there is some overwhelming reason for change
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U.S vs Dary Lumber Co
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(1941) overruled hammer v dagenhart - child labor
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Church Law
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Churches have courts, decisions have come into the basis of law today
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The Law Merchant
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Established between 11-13c to promptly settle disputes among merchants. Non merchants can't make laws for merchants, modern process of mediation
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Mediation
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Private dispute settlement
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Alexis de Tocqueville
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18-19c French, "Scared, any political question arises in the US that is not resolved sooner or later into a judicial question"
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Bill of Rights
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1791: first 10 amendments to the constitution
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Declaration of Independence
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Thomas Jefferson 1776
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How many amendments to the constitution are there
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27
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Why was the constitution written
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1) fear of arbitrary govt 2) situation of America's relationship with Britain, taxation w/out representation and standing army in colonies, forced quartering of troops
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Purpose of the founding fathers
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avoid a concentration of power in the hands of a few
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The Branches
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System of checks and balances to counter balance each other - Executive, president - Legislative, congress - Judicial, supreme court
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Article III constitution
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Sets up federal judiciary but established only the Supreme Court, Alexander Hamilton proposed a national court system to interpret laws passed by congress
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US District Courts
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94 district courts (each with a district attorney) with 500 judges, have the power to hear civil and criminal cases
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Trial Court
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- Evidence is produced - People testify - judge/jury looks @ evidence - determines facts of the case - complete record of all proceedings
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Federal Crimes
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bank robbery, tax evasion, interstate fraud, espionage, sabotage, assassination of federal officials
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US Attorney Positions
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Appointed by the president
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Federal Question Cases
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Case in which plaintiff's claims are based or arise under either constitution, federal statues or treaties. Modern view = if your case substantially involves dispute involving the validity
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Diversity of juristictions
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District court can hear a civil case if there is diversity @ the time the case is started
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Other Subjects that can be heard in federal court
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Bankruptcy, Patent law, Copyrights.. Any controversy in which U.S is a party
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Erie Railroad v Tompkins
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(1938) Fed judge applies appropriate state law to the facts of the case
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United States Court of Appeals
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Appellate court of the federal system (first level) created by congress in 1891
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Number of Circuits
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13 circuits total 12th is the DC circuit
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Appellate Court
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Did the trial judge rule correctly based on facts
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Appellate Briefs
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Written summary of each side's legal arguments
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Opinion writing
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optional, judge explains why
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Two questions to bring a case to the supreme court
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1) can one appeal a case to the supreme court from U.S. court of appeals 2) Can one appeal case from state supreme court to U.S supreme court
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How the supreme court chooses cases
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The supreme court has complete control over which cases they'd like to hear and which cases they don't
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Writ of Appeal
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- a state supreme court has declared a federal law or treaty unconstitutional - if a federal court like U.S court of appeals strikes down a state law as being contrary to a federal law, treaty/constitution
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Writ of Certiorari
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All other cases involving federal question a party has the privilege of petitioning the supreme court - must be an issue of special significance or controversy, by the opinion of the supreme court
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Rule of 4
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9 judges on the supreme court, you have to convince 4 to hear your cate
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Importance of the Supreme Court
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- Symbol of justice - Only court mentioned in the Constitution - Number of justices is set by Congress (9 since 1869)
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Original Jurisdiction
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Exclusive jurisdiction between US and a state, involving foreign or citizens between state lines
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Exclusive Jurisdiction
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cases between 2 or more states
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New Jersey v New York
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(1996) fought over a portion of land near Ellis Island
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Appellate Jurisdiction
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the case has already had at least one trial and one appeal elsewhere
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Congress's power
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The court can decide if an act of Congress, law passed by a state legislature or a state supreme court decision violates the constitution. also regulates the appellate jurisdiction of the supreme court
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Marbury v Madison
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(1803) supreme court held that a law passed by congress can be struck down in violation of the constitution
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Little v Barreme
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(1804) president's decisions can be ruled unconstitutional
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Fletcher v Peck
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(1810) can decide if state laws are in violation of the constitution
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Martin v Hunter's Lessee
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(1816) Assert ultimate supreme court authority over state courts in civil matters of federal law
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Fletcher and Martin
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Power of the constitution (federal law) > State law, derived from supremacy clause of constitution
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Standard of Supreme court cases
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No Hypothetical cases No advisory opinions (issued by supreme court, cannot give legal advice to the president)
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Mootness
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No case or controversy exists if the issues have been laid to rest by time
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DeFunis V Odegaard
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(1974) rejected admission college applicant, sued for racial discrimination. By the time it got to the supreme court he had already graduated law school, so no more problem
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Roe V Wade
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(1973) Supreme court struck down state laws concerning abortion
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Reapportionment
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Redrawing of voting district lines every 10 years after the census
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Political Questions
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Settlement of issue is entrusted by the constitution to a political department of government. No standard for judicial resolution of the problem, lack of adequate judicial remedies
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Colegrove v Green
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45 years since redrawing district lines
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Roudebush V Hartke
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Tie in Indiana over who won an election
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Constitution v Amendments
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Amendments prevail b/c a more recent impression of modern society
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Supreme court schedule
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Annual term begins on the first Monday in October. Extension of the court's normal 36 week pattern - Special summer sessions where they come back
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1971 Pentagon Papers case
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When they have a serious case, the supreme court will stay longer
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Original Docket of the court
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Cases between states
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Appellate Docket of the Court
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Numerous cases
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Miscellaneous Docket of the court
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Largely handwritten from prisoners asking to be let out
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Habeas Corpus
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Miscellaneous letters filed by indigent prisoners
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Mandamus
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Command to an inferior court ordering a person to perform a public or statutory duty
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Problems in petitions heard by the court
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- Money - Time (avg 4-6 years to make it to the supreme court) - Effort (high stakes, lots of preparation)
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Brandeis Brief
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Social Studies in Briefs
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Amicus Curiae
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Filed by someone who is not a party but interested in the outcome
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Oral Arguments
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- 10-12am or 1-3pm - Spectators: 300 seats, 112 reserved for press families friends etc - Order of seniority - briefs carry the case, questions answered can make or break your case - 60 minute time limit each
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Conference Day
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On Friday between Oct - June closed door session with just 9 justices all day
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Conference Procedure
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Discussion: Speak in order of seniority Voting: Junior justice votes first, senior justice votes last
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Majority Opinion
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Opinion of the winning side
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Concurring Opinion
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Agree for a different reason
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Dissenting Opinions
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Disapproval
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Ratio Decidendi
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The essence, rule of law in the case to be cited by future generations
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Obiter Dictum
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Not pertinent to legal rule, opinion of the judges
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Role of the Chief Justice
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Primus inter pares - "first among equals," presides over oral arguments, moderate - Task leader - Social leader
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Influences on supreme justice decision making
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- Legal Periodicals - yale vs harvard - Social science data - Law clerks (each justice gets 4, chief = 6)
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Law Clerks
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Chosen individually, no employment laws exist. Duties include: - read brief, write summaries - do research - act as a sounding board
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Life on the supreme court
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Lonely and monastic Prestigious and highly coveted Salary $230-250k
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Originalist
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Always goes back to the original works of writers
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Non-originalist
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interpret the document in light of our own times
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Requirements for the supreme court
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NO QUALIFICATIONS (constitution)
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Informal requirements
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Native born, most are men/caucasian usually historically protestant currently 6 Christians 3 Jews
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Motivation behind appointments to the supreme court
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- Friendship - Politics - Geography - Religion - Race and Sex - Objective merit - Judicial Philosophy - Battle over interpretation
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Getting rid of supreme court justices
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Supreme court justices are appointed for life, either day or can be impeached for high crimes/misdemeaners
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Samuel Chase
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1804 The only impeachment of the supreme court (loudmouth federalist), didn't end up getting convicted and continued to serve until 1811 until he died
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Supreme court enforcement
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The supreme court cannot enforce it's rulings, relies on president and other branches
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C.J Roberts
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Conservative, appointed by Bush '05
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Scalia
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Conservative, appointed by Regan '86
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Kennedy
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Swing Vote, appointed by Regan '87
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Thomas
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Conservative, appointed by Bush '91
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Ginsberg
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Liberal, appointed by Clinton 93
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Breyer
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Liberal, appointed by Clinton '94
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Alito
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Conservative, appointed by Bush II '06
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Sotomayer
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Liberal, appointed by Obama '09
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Kagan
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Liberal, appointed by Obama '10
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Civil Procedure
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The method by which an aggrieved person who claims to have suffered injury to person or property is able to proceed against the person who committed the alleged wrong
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Rule of civil procedure state level
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Adopted by most states
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In personam
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power of a court over the defendant. Every lawsuit involving money: make the person pay
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In rem
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Jurisdiction over the thing: authority to rule over a piece of property
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Service of process
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Giving notice to the defendant that he/she is being sued
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Personal Service
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Handing a copy of process to defendant / leaving it at the house
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Construction Service
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Public in a newspaper of general circulation
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Substituted service
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Mailing process to defendant @ last known address
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Long Arm Statues
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State's jurisdiction can extend to a person who resides outside the state but has significant relations in the state, created by a tort
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Tort
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Wrongful act in another state, jurisdiction
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Venue
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Proper place for the suit to be heard
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Location Rules for Civil cases
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Where the plaintiff lives, where the defendant lives, easiest location for witnesses
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Plaintiff
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Person suing in a civil case. Must have standing to sue
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Class Actions
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A wrong inflicted on many people by 1 person or a company - group of people joining together to sue a company
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Pleadings
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Paperwork filed with the case; legal documents filed by a lawyer with a court setting forth the claims of the parties - Purpose: to define the controversy
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Lawsuits begin with
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Plaintiff files a complaint with the court
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Reasons for civil lawsuit
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- breach of contract - injury to your person - injury to your property - injury to your character
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Plaintiffs can sue for
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- court order - injunction
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Discovery
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The means by which either party in a lawsuit can with good cause gather information to support their trial, must be relevant
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Deposition
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Sworn statement to preserve testimony related to the case
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Interrogatories
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Long list of questions that need to be answered *all in writing
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Inspection of Physical Evidence
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Producing documents in a case for the other side in evidence
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Medical Examination
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Hire a doctor to examine industry
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Criminal Trial burden of proof
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"Beyond a reasonable doubt" (95%)
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Pre Trial Conference
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Specially convened meeting between both sides a lawyer and a judge, to settle a case before the trial
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Continuances
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Postponement of the trial b/c of illness or inability to find a witness
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Voir Dire
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Process of selecting the jury: People are questioned by a judge as a group to eliminate people with associations to the case - to remove bias. Also establishes rapport with jurors and plant seeds of the case
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# of jurors in a civil case
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many = 12, some states = 6
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Peremptory challenges
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Getting rid of a juror for no apparent reason
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Challenges for cause
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Getting rid of a juror for a reason, unlimited
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Civil Trial burden of proof
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Prove your case to a preponderance of the evidence (60%)
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Opening statement
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usually around 20 minutes (allotted 1 hour) simple, summary to build a positive report w/ jury
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Good Colors
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Navy Blue Brown Grey Tan
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Direct Examination
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Attorney questions their own witness - question sequencing very important
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Cross Examination
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Attorney questions witness for the other side to test the accuracy of the direct examination & illicit more facts
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Questions in Examination
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Y/N answers, never ask "Why" (for cross examination) or leading questions
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Best Evidence Rule
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Original documents or exact copies only
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Hearsay Evidence
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Second hand information, not admissible in most cases
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Privileged Communications
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Statements made between certain person in certain relationships do not have to be disclosed in court (doctor/patient, attorney/client)
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Sustain
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Judge agrees with an objection
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Overrule
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Judge disagrees with an objection
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Motion for a non-suit
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Plaintiff needs to prove the facts
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Affirmative defenses
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Legal excuse that protects the defendant from being held liable
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Statue of limitations runs out
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Time limitation to sue runs out
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Truth in Defamation case
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Truth always defends against defamation cases
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Contributory Negligence
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Plaintiff contributed to injury - the balance of negligence is comparative
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Instructions to the Jury
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Explains the law to the jurors
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Verdict
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Plaintiff verdict or defendant verdict, the decision
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Additur
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Ask the judge to add $ for the plaintiff
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Remittitur
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Ask the judge to lower $ for plaintiff
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Compensatory damages
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to compensate for injury suffered
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Punitive/Exemplary damages
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Punish defendant with more $ to the plaintiff
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Nominal Damages
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Damages of $1.00 awarded
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Pro Plaintiff characteristics
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Italy Greece Hispanic Jewish, introverts
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Pro Defendant characteristics
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Upper Europeans, more self sufficient, harder life
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U.S District Court
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Trial court of the federal system
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Eligible for jury selection
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- 18 years old - US Citizen - Resident for 1 year in district - No prior criminal convictions punishable for more than 1 year - ability to read write and understand english - no physical/mental disabilities
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Where they find people to select for Jury Duty
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Voter registration lists, Drivers License lists, etc
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Optional Exemptions from Jury Duty
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70+ Disabled On Duty Caring for elderly parent/sick child
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Day One Trial System
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originated in CT, if not chosen for jury duty you're out of the selection for 3 years. Purpose to get a larger cross section of jurors
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The Ideal Jurur
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Fair and Impartial, leaning in favor of your side
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Endoporph
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Juror that is Pro Criminal defendant
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Ectomorph
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Juror that is Pro prosecution
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"mock jury"
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get people to hear the arguments before they're presented in the courtroom the night before the trial, similar demographics to a real jury
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Psycho-Legal Jury Selection
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High profile cases have a jury selection company to get you an ideal jury. Through surveys, demographics, attitudes relating to issues, ideal profile to use as target during voir dire
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Sequestering a Jury
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In some states, jurors can write down questions to be presented to the judge, judge decides
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Advantages of a Jury
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Prevents popular distrust of justice, provides some flexibility in legal rules, educates people, avoids corruption, trial lawyers favor juries
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Disadvantages of a Jury
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Jury can be arbitrary (unpredictable) and capricious - judges should decide cases they are trained in law. Juries can be expensive and time consuming, sometime selecting a jury takes longer than the trial
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Plaintiff Lawyers
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Handle large civil disputes & malpractice cases
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Inner Circle of Advocates
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Lawyers who have won judgements of at least $1 Million for their clients
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Lawyer Qualifications
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College degree, law school, good moral character, Bar exam
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Adversary System
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American system of justice, judge = passive referee
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Qualities of Judges
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Temperate, civil, patient, impartial, courteous. Obliged to follow the canons of Judicial Ethics, Intellectual qualities
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Role of Trial Court Judge
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- Engage in the process of adjudicating cases to settle disputes between parties - Criminal and civil cases
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Role of Appellate court Judge
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Determine what a law passed by a legislature means by looking at legislative history and records of hearing committees
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Problems with legislative history
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Used when a statue is unclear, not used to read language out of a statue. Used to clear up uncertainty, but may be ambiguous
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Plain Meaning Rule
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Reliance on usual and ordinary meaning of a law's text
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Rules of construction
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- State or fed is not covered by a law unless law says so - law is applied prospectively to future situations - letter vs spirit of the law - meanings of doubtful words: context and association
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Ejusdem Generis
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"of the same kind or nature" General words must not be applied in their widest extent, but must be narrowed down to similar words
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Expressio unius, Exclusio Alterius
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When one or more things of a class are included, all else is excluded: The expression of one thing is the exclusion of another
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Sequestered Jury
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Cannot leave or have any access to outside info. Mob trials & High profile cases
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Hung jury
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Jury cannot reach a verdictt, re-do trial. "mistrial"
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How do Lawyers make money
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- Annual Retainer - Flat fees - Hourly Billing - Contingency fees (%) - Lobbyists in Washington
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Duty of a Lawyer
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To advise the client on proper course of action, and be zealous in advocating the client's case
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Alternative dispute resolution
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Other ways of resolving disputes: mediation through cooperation not competition
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American Society in law
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Materialistic and individualistic, sue happy society with decentralized legal systems and small litigation cases
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Board Certified Lawyer
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Lawyer with advanced course training and have experience, coursework & successful examinations that leads to certifications in a particular area of law
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Client Attorney privilege
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Attorneys cannot testify or talk about confidential relations with 3rd parties
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Canons of Legal Ethics
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Used to forbid advertising by lawyers until '77
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Bates v State Bar of Arizona
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Bates operated a law firm in Phoenix AZ, published an ad in a local paper with types of cases and $, went to the supreme court where it was decided lawyers have freedom of speech & the rights to advertise
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Competent representation
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Lawyers should handle a case competently once the agreement has been made, should not take a case unless they have the training & experience to handle it
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Lawyer's Responsibilities
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- Keep information confidential - can withdraw from the case if client refuses to cooperate - must not commingle client funds and personal funds
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Shakespeare criticism of lawyers
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"Henry The 4th Pt 2" depicted a character who wanted to kill al lawyers
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Thomas More criticism of lawyers
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A lawyer himself, described a utopia of justice without lawyers
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Dickens criticism of lawyers
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Described an english case where lawyers were the only ones in the end to make $
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Current Criticism of lawyers
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Incompetent and Integrity
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Grievance Committees
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Fie a complaint to the committee after a bad experience with a lawyer, this group recommends a penalty to the court
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Legal malpractice cases
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Unhappy clients sue their lawyers
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Acting as your own lawyer
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In small claims cases ($5k or less) you can, in criminal cases judges recommend against it
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Faretta v California
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(1975) Supreme court decided in criminal courts, those who want to represent themselves are assigned a member of the bar to supervise and help
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Ted Bundy
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Serial killer of young women, law student himself of three years tried to represent himself, convicted and got the chair
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Colin Ferguson
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Shot up a train, convicted after trying to defend himself
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Administrative Agencies
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Regulate products and businesses, environmental problems, communication, virtually every activity of business and individuals is subject to regulation
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Executive Agencies
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Regulatory agencies under the direction of the president/federal government
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Independent Agencies
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Regulatory agencies not under the direction of the president/federal government
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Reasons for removal of independent commissioners
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- Inefficiency - Neglect of Duty - Malfeasance in office
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Agencies Purpose
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"4th Branch of Government" 1) Supervision 2) Expertise 3) Flexibility
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Agencies Activities
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1) Rule making 2) Investigations 3) Adjudicatory hearings
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NIRA
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Authorized the president to regulate commercial industry. Notable Cases: Panama Refining Co v Ryan (1935) / Weiner v U.S. (1958)
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View of Lowi
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Lower officials are selected by Civil Service, higher officials enjoy longer terms than the president
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Interstate Commerce Commission
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(ICC, 1887)to control the railroads and unfair business practices; midwestern farmers small manufacturers and railroads seeking regulation
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Federal Trade Commission
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(FTC, 1914) To prevent unfair methods of competition in commerce
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Federal Power Commission
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(FPC, 1920) Regulating hydropower trade in America
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Securities and Exchange Commission
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(1934) protects investors from dangerous or illegal practices or fraud by requiring full disclosure in the financial industry
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Federal Communications Commission
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(1934) regulates interstate and international communication through media
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National Labor Relations Board
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(1935) governs relations between labor unions and employers who's operations involve interstate commerce
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Civil Aeronautics Board
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(1938) regulates aviation services
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Equal Employment Opportunity Commission
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(1965) Federal laws prohibiting discrimination
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Environmental Protection Agency
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(1970) regulating business practices to protect human health and the environment
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Occupational Health and Safety Administration
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(OSHA, 1970) Assuring safe and healthy working conditions by setting and enforcing standards, providing training and outreach assistance
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Consumer Product Safety Commission
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(1972) an effort to reduce the risk of consumer injury and death by developing industry standards for certain products to protect the public
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Rule Making
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Notice is put in the Federal Register, submission of written comments
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Adjudicatory Hearings
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Many disputes are settled informally, hearing briefs and decision is made
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The Iron Triangle
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Sub Governments: Congress, Bureaucrats, and Interest Groups
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Sub Governments
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Members of agencies and congress need to maintain good relations with each other, bureaucrats do favors, interest groups lobby
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Legislative Oversight
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Congress can conduct special investigations, general accounting office and congressional committees
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Legislative Veto
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No longer constitutional b/c violate separation of powers
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Federal Trade Commission Improvement Act of 1980
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Providing a more effective and equitable enforcement of FTC laws
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Costs of Regulation
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Administrative costs + Compliance costs
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Deregulation
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Saving consumers money, optimistic view of the free market. Some safety concerns and loss of service problems
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Airline DeRegulation Act of 1978
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No more govt. control on fares, routes, and market entry of new airlines
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Motor Carrier Act of 1980
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Partially decontrolled trucking and similar deregulation of railroads
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Equitable Relief
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to prevent future injury - can sue for $ and court order in the same process
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Injunction
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An order by a judge to a defendant to do something or not to do something
