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Will K. > BUSINESS LAW > Flashcards

BUSINESS LAW Flashcards

1
Q

Functions of the law

A

keeping the peace; promoting social justice; facilitating orderly change; encouraging compromise; shaping moral standards; maintaining the status quo; facilitating planning; maximizing individual freedom

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2
Q

Facilitating planning

A

the most important function of the law to BUSINESS; starts years in advance; incur expensive before getting paid –> INVESTMENT

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3
Q

What do laws and regulations affect?

A

virtually all business activities

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4
Q

Which areas of law are important for business?

A

ALL areas of law

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5
Q

Statutory law

A

elected officials; ordinances; uniform commercial code; WE have a direct influence

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6
Q

Administrative law

A

federal agencies; state and local agencies; WE have very little influence

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7
Q

Common Law tradition

A

American law is based on the English Common Law; based on traditions, social customs, rules, and cases dating back to 1066AD

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8
Q

Early English courts

A

courts of LAW (monetary relief); courts of EQUITY (non-monetary relief)

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9
Q

Courts of equity

A

“Chancellor’s Court”

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10
Q

What was the status of merchants?

A

merchants were beneath the king’s dignity; did not have access to the courts

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11
Q

What did the merchants end up doing?

A

they handled their OWN affairs

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12
Q

Merchant law

A

became the most fair and stable area of law…eventually became BUSINESS LAW; very efficient because it was motivated by PROFIT; by 1600, the Common Law adapted merchant law

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13
Q

1896 (USA), 1954 (UK)

A

law, equity, and merchant courts combined; some minor exceptions

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14
Q

Who made the original courts of law?

A

William the Conqueror

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15
Q

Who made the original court of equity?

A

William the Conqueror’s chancellors

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16
Q

The doctrine of stare decisis

A

“stand on decided cases” is judge-made law; case precedents and reporters; each decision becomes a legal PRECEDENT

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17
Q

When will courts change a precedent?

A

when the precedent is clearly wrong; times have changed and new precedents are needed; when there are no precedents the courts will use their best judgment

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18
Q

Case of first impression

A

a case with no precedent

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19
Q

“The wisdom of the ages”

A

the Common Law is slow

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20
Q

Is there ever one “right” answer?

A

NO, there are often good arguments for both sides; judges’ personal beliefs can affect outcomes; lawsuits can NOT be predicted with certainty

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21
Q

How many legal generations have there been since William the Conqueror?

A

24

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22
Q

What does the Common Law today govern?

A

actions not covered by statutory law; courts interpret statutes

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23
Q

How many states adopted the English Common Law upon joining the Union?

A

49/50; exception is Louisiana

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24
Q

T/F: a law in 1601 could be the governing law in Alabama today.

A

True

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25
Why did states adopt the English Common Law as their own?
they needed SOME laws; Americans were already familiar with the English Common Law
26
What date was the English Common Law effective in each state?
the day they joined the Union
27
What is the effect of the different adoptions dates of the English Common Law?
every state has slightly different laws
28
Did the Federal Government adopt the English Common Law?
NO--there is no Federal English Common Law; all Federal law is considered statutory law
29
T/F: court decisions under the Common Law affect future cases in many circumstances.
True
30
T/F: a court decision from England in 1709 may be the law in some states but NOT in others.
True
31
Desired constitution before the Revolutionary War
states wanted a confederation with weak national government and limited powers
32
During the Revolutionary War, the states...
adopted the Articles of Confederation
33
Did the Articles of Confederation "work?"
No--the states called a Constitutional Convention to form a new government
34
What was the result of the Constitutional Convention?
the U.S. Constitution
35
What is the sole reason we have the Constitution we have today?
Business
36
What was the flaw of the first proposed Constitution?
it did NOT protect individual rights and liberties
37
What fixed the flaw of the first proposed Constitution?
The Bill of Rights
38
The Bill of Rights
the first 10 amendments
39
Constitutional powers of government
established the federal form of gov't; SHARES power between national and state gov'ts; national gov't has limited, enumerated powers delegated from states
40
Regulatory powers of the states
10th amendment; police powers
41
Police powers
health, safety, order, and morals; they have NOTHING to do with the actual police
42
Privileges and Immunities Clause
prevents states from discrimination against non-citizens
43
Full Faith and Credit Clause
requires states to enforce the laws and court rulings of other states, especially concerning property and criminal proceedings
44
Separation of power
CHECKS AND BALANCES --> legislative, executive, judicial
45
Legislative branch (Congress)
creates laws
46
Executive branch (president/agencies)
enforces laws
47
Judicial branch (courts)
interprets laws
48
T/F: Congress has the power to regulate commerce with foreign nations, AND among states.
True
49
The Commerce Clause
the MOST IMPORTANT clause in the Constitution to BUSINESS; gives the federal gov't the exclusive right to regulate interstate commerce...IF they choose to exercise it
50
Interstate (1824)
across states
51
Intrastate (1942)
in states
52
T/F: the federal government can regulate ALL commerce and anything that affects commerce.
True
53
Equal protection
strict security; intermediate scrutiny; "rational basis" test
54
When can states regulate interstate commerce?
if the Federal Gov't has not decided to exclusively regulate a particular area of commerce; the state regulation does not "unduly burden" interstate commerce
55
The Supremacy Clause
the Constitution provides that federal law is the "Supreme Law of the Land" (but limited by 10th amendment); a VALID federal statute or regulation will take precedence over a conflicting state or local statute
56
Federal Preemption
when state law is upheld or "preempted" due to the Supremacy Clause
57
Business and the Bill of Rights
first 10 amendments to the U.S. Constitution; protect our individual rights
58
T/F: your rights don't extend as far as to interfere with other peoples' rights.
True
59
All courts have three levels
1. trial court 2. courts of appeal 3. Supreme Court
60
Trial court
original jurisdiction
61
What is the name of the federal trial court?
U.S. District Court
62
Courts of appeal
intermediate level
63
Supreme Court
top authority
64
U.S. Supreme Court
ONLY appellate court that does NOT have to listen to your appeal; hears cases in its discretion
65
How many appeals per year does the U.S. Supreme Court get?
10,000+ appeals
66
Petition Certiorari
one-page request to the Supreme Court to hear your appeal
67
How many appeals does the U.S. Supreme Court actually hear per year?
80-100 appeals
68
Writ of Certiorari
Supreme Court agreement to hear your appeal
69
T/F: in the U.S., you have the right to sue anyone over any matter in any court.
True
70
T/F: all appellate courts MUST hear your appeal.
False (U.S. Supreme Court is the exception)
71
Alternative dispute resolution (ADR)
most common methods: negotiation, mediation, arbitration
72
mediation
does NOT result in a decision
73
arbitration
DOES end in a decision; if non-binding, you can appeal
74
Why consider an ADR?
trails are expensive and time consuming; ADRs are inexpensive, quick, and give parties more control over the process
75
T/F: unless court-ordered, there is NO RECORD which is an important factor in commercial litigation due to trade secrtes
True

Will K. (10 decks)

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