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CONGRESS -passes statutes -ratifies treaties -creates administrative agencies

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LEGISLATIVE BRANCH

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PRESIDENT -proposes statutes -signs or vetoes statutes -oversees administrative agencies issues -executive orders

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EXECUTIVE BRANCH

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FEDERAL COURTS -interpret statutes create (limited) federal common law review the constiutionality of statutes and other legal acts

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JUDICIAL BRANCH

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Law is what the sovereign says.

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LEGAL POSITIVISM

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An unjust law is no law at all.

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NATURAL LAW

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Who enforces the law counts more than what is in writing.

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LEGAL REALISM

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is concerned with the basic nature of law. The three theories are: -Legal Positivism -Natural Law -Legal Realism

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JURISPRUDENCE

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which is the body of cases decided by judges, as they follow earlier cases known as precedent.

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COMMON LAW

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the rules and decisions made by federal and state administrative agencies.

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ADMINISTRATIVE LAW

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concerns behavior so threatening to society that it is outlawed altogether. This law deals with duties and disputes between parties, not with outlawed behavior.

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CRIMINAL LAW

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defines the rights of people.

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SUBSTANTIVE LAW

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describes the processes of settling disputes.

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PROCEDURAL LAW

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Let the decision stand; decisions are based on precedents from previous cases.

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STARE DECISIS

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conformity with rules or standards

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EQUITY

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a partner may maintain a direct suit against the partnership or another partner for legal or equitable relief to enforce the partner's rights; the partnership itself may maintain an action against a partner for any breach of the partnership agreement or for the violation of any duty owed to the partnership

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LEGAL ACTIONS

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the philosophical study of moral values and rules

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ETHICS

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Ethics concern an individual's moral judgements about right and wrong. Decisions taken within an organization may be made by individuals or groups, but whoever makes them will be influenced by the culture of the company. The decision to behave ethically is a moral one; employees must decide what they think is the right course of action. This may involve rejecting the route that would lead to the biggest short-term profit.

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IMPORTANCE OF ETHICS IN BUSINESS

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behavior that does not conform to generally accepted social norms concerning beneficial and harmful actions

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UNETHICAL BEHAVIOR

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The moral principles or values that generally govern the conduct of an individual or a group.

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WHAT IS ETHICAL BEHAVIOR

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-Feelings -Religion -Law/rules -Culture -Science

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WHAT ETHICS IS NOT

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- Law had punishments already in place - Ethics had courtesy guidelines to prevent offensive content and bad behavior

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THE DIFFERENCE BETWEEN LAW AND ETHICS

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-Society as a whole benefits from ethical behavior -Money does not buy happiness -People feel better when they behave ethically -Unethical behavior can be very costly -Ethical behavior is more likely to pay off

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DIFFERENT THEORIES REGARDING ETHICS

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the parties agree to bring in a neutral third party, but with a major difference: the arnitrator has the power to impose an award. The arbitrator allows each side equal time to present its case and, after deliberation, issues a binding decision, generally without giving reasons. Unlike mediation, arbitration ensures that there will be a final result, although the parties lose control of the outcome. This way is generally faster and cheaper than litigation.

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ADR AND HOW IT WORKS

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Three or more judges hear the case There are no juries, ever These courts do not hear witnesses or take new evidence They hear appeals of cases already tried in lower courts.

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APPELLATE COURTS

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An appeals court reviews the trial record to make sure that the lower court correctly applied the law to the facts. If the trial court made an ______ __ ______, the appeals court may require a new trial.

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ERROR OF LAW

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The party filing the appeal.

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APPELLANT

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The party opposing the appeal.

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APPELLEE

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refers to a court's power to hear a case. In state or federal court, a plantiff may state a lawsuit only in a court that has _________________ over that kind of case.

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JURISDICTION

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Written arguments on the case

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BRIEFS

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nullified

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REVERSED

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Permitted to stand.

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AFFIRMED

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Even if no federal law is at issue, federal courts have DIVERSITY JURISDICTION when (1) the plaintiff and defendent are citizens of different states and (2) the amount in dispute exceeds $75,000.

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DIVERSITY CASES

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A question that has to do with the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

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FEDERAL QUESTION

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Phase 1- Incident occurs, Phase 2- Consultation with attorney, Plaintiff, Defendant, Discovery, Disposition, Phase 3- The trial, Phase 4- Appeal

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THE LITIGATION PROCESS

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A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

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DISCOVERY

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Pre-trial methods used by trial lawyers (such as subpoena, deposition, interrogation, motion to procure documents

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DISCOVERY TOOLS

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A consolidated suit combining the claims of multiple plaintiffs alleging the same type of action against a defendant in which each plaintiff expects to prove common issues of law and fact

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CLASS ACTIONS

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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.

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ADMINISTRATIVE LAW

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use of administrative structures to regulate and control members of a population

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ADMINISTRATIVE POWER

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mediation with an unbiased third party making the ultimate decision

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ADJUDICATION

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CHAPTER 4 Envolves in akward fits and starts because courts attempt to achieve two contradictory purposes: predictability and flexibility.

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COMMON LAW

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Sometimes wording is ambiguous, either by oversight, or intentional -- as a compromise. New laws must be interpreted by the courts. Plain Meaning Rule -- the courts must use the common sense definition of words. Legislative History and Intent -- sometimes the court can look to the reasons behind the law to determine the legislators' intent. Public Policy -- the courts will use accepted social policies, such as reducing crime or providing education to interpret a law. Once the law (statute) has been applied by the courts, its interpretation becomes a precedent to be used in future court cases.

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STATUTORY INTERPRETATION

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FIRST AMENDMENT (FREE SPEECH) Protected unless it is intended and likely to create imminent lawless actions.

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POLITICAL SPEECH

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FIRST AMENDMENT (FREE SPEECH) ...dominant theme to propose a commercial transaction. The government may regulate other ___________ speech, provided that the rules are reasonable, and directed to a legitimate goal.

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COMMERCIAL SPEECH

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FIFTH AMENDMENT Ensures that before the government takes liberty or property, the affected person has a fair chance to oppose the action.

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PROCEDURAL DUE PROCESS

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prohibits a state from taking private property for public use without just compensation. Before a government may require an owner to dedicate land to a public use, it must show that this owner's proposed building requires this dedication of land.

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THE TAKING CLAUSE

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The power of the government to take private property for public use.

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EMINENT DOMAIN

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..., This clause states that Congress has the power to regulate commerce with foreign nations, among the states, and with the Indian tribes.

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THE COMMERCE CLAUSE

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--EXCLUSIVE POWER-- As to the ________ __________, the Commerce Clause is clear; only the federal government may regulate it. The federal government must speak with one voice when regulating commercial relations with foreign governments.

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INTERNATIONAL COMMERCE

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--CONCURRENT POWER-- As to _________ ____________, the clause gives concurrent power, meaning that both Congress and the states may regulate it. Congress is authorized to regulate trade between states; each state regulates business within its own borders. Conflicts are inevitable, and they are important to all of us; how business is regulated depends upon who does it.

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DOMESTIC COMMERCE

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generally protect only against governmental acts. The Constitution generally does not protect us from the conduct of private parties, such as corporations or other citizens.

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CONSTITUTIONAL RIGHTS

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Judicial review, deciding if cases involving local, state, and federal laws or actions violate the constitution of the US. (if congress passes a law, they can declare it unconstitutional)

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ROLE OF THE SUPREME COURT

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representative of people and protector of the common man against abuses of power by the rich and the privileged

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ROLE OF THE PRESIDENT

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an abusive attack on a person's character or good name

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DEFAMATION

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a threatened or attempted physical attack by someone who appears to be able to cause bodily harm if not stopped

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ASSAULT

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an assault in which the assailant makes physical contact

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BATTERY

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actions that deliberately hurt, embarrass, or scare people

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INTENTIONAL TORTS

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1. Was a duty of care owed to the injured person; 2. What standard of care does the situation require?; 3. Was this standard of care breached?; 4. What damages, if any, did the injured person suffer that were caused by the breach of the standard of care?

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NEGLIGENCE ANALYSIS

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(law) negligence allocated between the plaintiff and the defendant with a corresponding reduction in damages paid to the plaintiff

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COMPARATIVE NEGLIGENCE

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An affirmative defense that alleges that the plaintiff, through a lack of care, caused or contributed to his or her own injury

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CONTRIBUTORY NEGLIGENCE

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An action or failure to act in violation of a statutory requirement.

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NEGLIGENCE PER SE

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Assumption of risk, Superseding cause, and contributory and comparative negligence.

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DEFENSES TO NEGLIGENCE

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A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves."

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RES IPSA LOQUITUR

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A defense in which the defendant must prove that (1) the plaintiff knew and appreciated the risk and (2) the plaintiff voluntarily assumed the risk.

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ASSUMPTION OF THE RISK

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An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability.

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SUPERSEDING CAUSE

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intruding on someone's property without permission

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TRESPASSING

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If a crime happens on your property you are liable unless the harm was unforeseeable. In most states, a landowner's duty of due care is lowest to trespassers; higher to a license (anyone on the land for her own purposes but with the owner's permission); and highest of all to an invitee (someone on the property as of right)

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LANDOWNER LIABILITY

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FACTUAL CAUSE If the defendant's breach physically led to the ultimate harm, it is the factual cause.

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ACTUAL CAUSATION

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For the defendant to be liable, the type of harm must have been reasonably foreseeable.

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FORESEEABLE CAUSATION

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In criminal law, a defense in which the defendant claims that he or she was induced by a public official—usually an undercover agent or police officer—to commit a crime that he or she would otherwise not have committed.

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ENTRAPMENT

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in criminal procedure, a rule which any evidence that is obtained in violation of the accused constitutional rights guaranteed by the 4th, 5th, and 6th amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.

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THE EXCLUSIONARY RULE

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A list of rights that police in the United States must read to suspects in custody before questioning them, pursuant to the Supreme Court decision in Miranda v. Arizona.

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MIRANDA RIGHTS

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1. "Public Safety": holding that certain statements-such as statements concerning the location of a weapon- are admissible even if the defendant was not given Miranda warnings. 2. EXCEPTIONS INCLUDE: -If suspect still contacts a lawyer -confesses before being off the hook -public safety -if evidence is very strong

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EXCEPTIONS TO MIRANDA RIGHTS

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(1) Police obtains information from an informant or investigator (2) Magistrate: Probable Cause Hearing (3) Conduct Search (4) Find Evidence (5) Arrest Suspect (6) Booking (7) Bail Hearing (8) Grand Jury Indictment (or "Information" Submitted by Prosecutor) (9) Arraignment (10) Motion to Suppress (11) Plea Bargain (12) Trial (13) Appeal

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CRIMINAL PROSECUTION PROCESS

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A written statement signed under oath

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AFFIDAVIT

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Means it is likely that evidence of crime will be found in the place to be searched

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PROBABLE CAUSE

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A group of ordinary citizens that decides whether there is probable cause the defendant committed the crime and should be tried.

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GRAND JURY

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The government's formal charge that the defendant has committed a crime and must stand trial

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INDICTMENT

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A request that the court exclude certain evidence because it was obtained in violation of the Constitution

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MOTION TO SUPPRESS

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An agreement in which the defendant pleads guilty to a reduced charge, and the prosecution recommends to the judge a relatively lenient sentence

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PLEA BARGAIN

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1. If an officer doesn't feel an object that appears to be a weapon, no further search is justifiable. 2. If the initial pat-down gives probable cause for belief that an object is contraband or other evidence subject to seizure, the officer may pull out the object without a warrant as part of the plain touch doctrine. 3. If the officer feels an object he reasonably believes is a weapon, the officer may conduct a search by removing the object from the suspect. 4. If the object is a container, the officer may feel the container to see if it might contain a weapon. 5. If the container because of size, weight, and feel does not reasonably dispel suspicion, the officer may retain possession of the container. 6. If the container could not reasonably contain a weapon, it may not be searched or seized.

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SEARCH AND SEIZURE RULES

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A criminal defendant will frequently dispute the facts that link her to the crime. For example, she might claim mistaken identity (that she merely resembles the real criminal) or offer an alibi( that she can prove she was elsewhere when the crime was committed.) In addition, a defendant may offer legal defenses. A defendant who can prove that he was insane at the time of the criminal act will be declared not guilty.

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DEFENSES TO CRIMES

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the Fifth Amendment right providing that a person cannot be tried twice for the same crime

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DOUBLE JEOPARDY

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Serious crimes that are generally punishable by one year or more in prison, such as murder, arson, or rape.

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FELONIES

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less serious offenses than felonies; punishable by fines or imprisonment of up to one year. These include traffic violations and disturbing the peace

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MISDEMEANORS

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A violent criminal who appears likely to commit more crimes must be physically__________.

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RESTRAINT

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A goal of criminal sentencing that seeks to prevent a particular offender from engaging in repeat criminality.

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SPECIFIC DETERRENCE

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is the goal of demonstrating to society generally that crime must be shunned

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GENERAL DETERRENCE

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Giving back to the criminal exactly what he deserves

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RETRIBUTION

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The plaintiff must convince the jury that its version of the case is correct. In a civil case, the proof needs to be by a preponderance of evidence (meaning at least slightly more likely to be true). In a criminal case, the proof required is higher; it must be beyond a reasonable doubt.

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BURDEN OF PROOF

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a guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime.

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ACTUS REUS

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The state of mind that accompanies a criminal act. Also, a guilty mind.

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MENS REA

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Racketeer Influenced and Corrupt Organizations Act

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RICO

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is one of the most powerful and controversial statutes ever written. Congress passed the law primarily to prevent gangsters from taking money they earned illegally and investing it in legitimate businesses. Today it is being used more often against ordinary businesses.

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RICO

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RICO prohibits using two or more ________________ _____ to accomplish any of these goals: (1) investing in or acquiring legitimate businesses with criminal money; (2) maintaining or acquiring businesses through criminal activity; or (3) operating businesses through criminal activity. These include: embezzlement, arson, mail fraud, wire fraud, and so forth.

answer

RACKETEERING ACTS

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Uniform Commercial Code (UCC) - this statute has taken the common law principles of contracts and modified them to meet the needs of contemporary business. United Nations Convention on Contracts for the International Sale of Goods. The CISG applies automatically to any contract for the sale of goods between two parties, from different countries, each of which is a signatory.

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LAWS AFFECTING INTERNATIONAL TRADE

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makes it illegal for an American businessperson to give "anything of value" to any foreign official in order to influence an official decision.

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THE FOREIGN CORRUPT PRACTICES ACT

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is a tax imposed on goods when they enter a country.

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TARIFFS

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facilitate transactions by ensuring payment to sellers and assuring buyers that payment will not be made until the sellers have complied with the terms of the letters of credit. Typically compliance occurs when a bill of lading is delivered to the issuing bank.

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LETTERS OF CREDIT

BUSINESS LAW AND THE LEGAL ENVIRONMENT TEST 1 – Flashcards

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