Business Law (Test 1: Ch. 1-4) Flashcards
1
Q
law
A
That which must be obeyed and followed by citizens, subject to sanctions or legal consequences; a body of rules of action or conduct prescribed by controlling authority and having binding legal force.
2
Q
jurisprudence
A
The philosophy or science of law.
3
Q
Functions of the Law
(8 items)
A
- Keep the peace
- Shape moral standards
- Promote social justice
- Maintain the status quo
- Facilitate orderly change
- Facilitate planning
- Provide a basis for compromise
- Maximize individual freedom
4
Q
SCHOOLS OF JURISPRUDENTIAL THOUGHT
(7 Schools)
A
1) Natural Law - Postulates that law is based on what is “correct.” It emphasizes a moral theory of law—that is, law should be based on morality and ethics.
2) Historical - Believes that law is an aggregate of social traditions and customs.
3) Analytical - Maintains that law is shaped by logic.
4) Sociological - Asserts that the law is a means of achieving and advancing certain sociological goals.
5) Command - Believes that the law is a set of rules developed, communicated, and enforced by the ruling party.
6) Critical Legal Studies - Maintains that legal rules are unnecessary and that legal disputes should be solved by applying arbitrary rules based on fairness.
7) Law and Economics - Believes that promoting market efficiency should be the central concern of legal decision making.
5
Q
treaty
A
A compact made between two or more nations.
6
Q
statute
A
Written law enacted by the legislative branch of the federal and state governments that establishes certain courses of conduct that covered parties must adhere to.
7
Q
ordinance
A
Law enacted by local government bodies, such as cities and municipalities, counties, school districts, and water districts.
8
Q
administrative agencies
A
Agencies (such as the Securities and Exchange Commission and the Federal Trade Commission) that the legislative and executive branches of federal and state governments are empowered to establish.
9
Q
judicial decision
A
A decision about an individual lawsuit issued by a federal or state court.
10
Q
precedent
A
A rule of law established in a court decision. Lower courts must follow the precedent established by higher courts.
11
Q
stare decisis
A
Latin for “to stand by the decision.” Adherence to precedent.
12
Q
SOURCES OF LAW IN THE UNITED STATES
(6 Sources)
A
Source of Law
1) Constitutions - The U.S. Constitution establishes the federal government and enumerates its powers. Powers not given to the federal government are reserved to the states. State constitutions establish state governments and enumerate their powers.
2) Treaties - The president, with the advice and consent of two-thirds of the Senate, may enter into treaties with foreign countries.
3) Codified law: statutes and ordinances - Statutes are enacted by Congress and state legislatures. Ordinances are enacted by municipalities and local government bodies. They establish courses of conduct that covered parties must follow.
4) Executive orders - Issued by the president and governors of states. Executive orders regulate the conduct of covered parties.
5) Regulations and orders of administrative agencies - Administrative agencies are created by the legislative and executive branches of government. They may adopt rules and regulations that regulate the conduct of covered parties as well as issue orders.
6) Judicial decisions - Courts decide controversies. In doing so, a court issues an opinion that states the decision of the court and the rationale used in reaching that decision.
13
Q
Socratic method
A
A process that consists of a series of questions and answers and a give-and-take inquiry and debate between a professor and students.
14
Q
IRAC method
A
A method used to examine a law case. IRAC is an acronym that stands for issue, rule, application, and conclusion.
15
Q
limited-jurisdiction trial court (inferior trial court)
A
A court that hears matters of a specialized or limited nature.
16
Q
general-jurisdiction trial court (court of record)
A
A court that hears cases of a general nature that is not within the jurisdiction of limited-jurisdiction trial courts. Testimony and evidence at trial are recorded and stored for future reference.
17
Q
intermediate appellate court (appellate court or court
of appeals)
A
A court that hears appeals from trial courts.
18
Q
highest state court
A
The highest court in a state court system; it hears appeals from intermediate appellate state courts and certain trial courts.
19
Q
Special Federal Courts
(6 Special Federal Couts)
A
The special federal courts established by Congress have limited jurisdiction. Federal courts that hear matters of specialized or limited jurisdiction.They include the following:
1) U.S. Tax Court. The U.S. Tax Court hears cases that involve federal tax laws.
2) U.S. Court of Federal Claims. The U.S. Court of Federal Claims hears cases brought against the United States.
3) U.S. Court of International Trade. The U.S. Court of International Trade handles cases that involve tariffs and international trade disputes.
4) U.S. Bankruptcy Court. The U.S. Bankruptcy Court hears cases that involve federal bankruptcy laws.
5) U.S. Court of Appeals for the Armed Forces. The U.S. Court of Appeals for the Armed Forces exercises appellate jurisdiction over members of the armed services.
6) U.S. Court of Appeals for Veterans Claims. The U.S. Court of Appeals for Veterans Claims exercises jurisdiction over decisions of the Department of Veterans Affairs.
[p. 26]
20
Q
U.S. district courts
A
The federal court system’s trial courts of general jurisdiction.
21
Q
U.S. courts of appeals
A
The federal court system’s intermediate appellate courts.
22
Q
U.S. Court of Appeals for the Federal Circuit
A
A U.S. Court of Appeals in Washington DC that has special appellate jurisdiction to review the decisions of the Court of Federal Claims, the Patent and Trademark Office, and the Court of International Trade.
23
Q
Supreme Court of the United States (U.S. Supreme Court)
A
The highest court in the United States, located in Washington DC. The Supreme Court was created by Article III of the U.S. Constitution.
24
Q
petition for certiorari
A
A petition asking the Supreme Court to hear a case.
25
writ of certiorari
An official notice that the Supreme Court will review a case.
26
federal question case
A case arising under the U.S. Constitution, treaties, or federal statutes and regulations.
27
diversity of citizenship
A means for bringing a lawsuit in federal court that involves a nonfederal question if the parties are (1) citizens of different states or (2) a citizen of a state and a citizen or subject of a foreign country.
28
JURISDICTION OF FEDERAL COURTS
Type of Jurisdiction
1) **Federal question** - Cases arising under the U.S. Constitution, treaties, and federal statutes and regulations. There is no dollar-amount limit for federal question cases that can be brought in federal court.
2) **Diversity of citizenship** - Cases between citizens of different states or between a citizen of a state and a citizen or subject of a foreign country. Federal courts must apply the appropriate state law in such cases. The controversy must exceed the dollar limit of $75,000 for the federal court to hear the case.
[p. 33]
29
standing to sue
Having some stake in the outcome of a lawsuit.
30
in personam jurisdiction (personal jurisdiction)
Jurisdiction over the parties to a lawsuit.
31
service of process
A summons being served on a defendant to obtain personal jurisdiction over him or her.
32
long-arm statute
A statute that extends a state’s jurisdiction to nonresidents who were not served a summons within the state.
33
in rem jurisdiction
Jurisdiction to hear a case because of jurisdiction over the property of the lawsuit.
34
quasi in rem jurisdiction (attachment jurisdiction)
Jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching the defendant’s property located in another state.
Wiki: Of note, in a quasi in rem case the court may lack personal jurisdiction over the defendant, but it has jurisdiction over the defendant's property. The property could be seized to obtain a claim against the defendant.
35
IN PERSONAM, IN REM, AND QUASI IN REM JURISDICTION
(3 items)
Type of Jurisdiction
1) **In personam jurisdiction** - A court has jurisdiction over the parties to the lawsuit. The plaintiff submits to the jurisdiction of the court by filing the lawsuit there. Personal jurisdiction is obtained over the defendant through service of process to that person.
2) **In rem jurisdiction -** A court has jurisdiction to hear and decide a case because it has jurisdiction over the property at issue in the lawsuit (e.g., real property located in the state).
3) **Quasi in rem jurisdiction -** A plaintiff who obtains a judgment against a defendant in one state may utilize the court system of another state to attach property of the defendant that is located in the second state.
[p. 36]
36
venue
A concept that requires lawsuits to be heard by the court with jurisdiction that is nearest the location in which the incident occurred or where the parties reside.
37
forum-selection clause (choice of forum clause)
A contract provision that designates a certain court to hear any dispute concerning nonperformance of the contract.
38
choice-of-law clause
A contract provision that designates a certain state’s or country’s law that will be applied in any dispute concerning nonperformance of the contract.
39
Zippo Manufacturing Company v. Zippo Dot Com, Inc.
An important case that established a test for determining when a court has jurisdiction over the owner or operator of an interactive, semi-interactive, or passive website.
40
contingency fee
A fee arrangement with a client whereby a lawyer receives a percentage of the amount recovered by winning or settling a lawsuit. If the lawyer does not win or settle the case in the client’s favor, the lawyer receives nothing.
41
litigation
The process of bringing, maintaining, and defending a lawsuit.
42
pleadings
The paperwork that is filed with the court to initiate and respond to a lawsuit.
43
plaintiff
The party who files a complaint.
44
complaint
The document a plaintiff files with the court and serves on the defendant to initiate a lawsuit.
45
summons
A court order that directs the defendant to appear in court and answer the complaint.
46
defendant
The party who files an answer.
47
answer
The defendant’s written response to a plaintiff’s complaint that is filed with the court and served on the plaintiff.
48
cross-complaint
A document filed by the defendant against the plaintiff to seek damages or some other remedy.
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reply
A document filed by the original plaintiff to answer the defendant’s cross-complaint.
50
PLEADINGS
| (3 items)
**Type of Pleading**
1) **Complaint** - A document filed by a plaintiff with a court and served with a summons on the defendant. It sets forth the basis of the lawsuit.
2) **Answer -** A document filed by a defendant with a court and served on the plaintiff. It usually denies most allegations of the complaint.
3) **Cross-complaint and reply -** A cross-complaint is the document that is filed and served by a defendant if he or she countersues the plaintiff. The defendant is the cross-complainant and the plaintiff is the cross-defendant. The cross-defendant must file and serve a reply (answer).
[p. 48]
51
intervention
The act of others to join as parties to an existing lawsuit.
52
consolidation
The act of a court to combine two or more separate lawsuits into one lawsuit.
53
statute of limitations
A statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant. A statute of limitations begins to “run” at the time the plaintiff first has the right to sue the defendant (e.g., when the accident hap- pens or when the breach of contract occurs).
54
class action
A lawsuit where a group of plaintiffs with common claims collectively bring a lawsuit against a defendant.
55
Class Action Fairness Act (CAFA)
A federal statute that requires certain class action lawsuits to be brought in or transferred to federal courts.
The act is designed to reduce many abuses in class action lawsuits previously brought in state courts, particularly plaintiffs’ forum shopping for sympathetic state courts.
A **federal court must decline** jurisdiction if at least **two-thirds or more of the members of a proposed plaintiff class** and the primary defendants are citizens of a state and the principal injuries occurred in that state. In such case, the class action must be brought in that state’s court system
56
discovery
A legal process during which each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial.
57
deposition
Oral testimony given by a party or witness prior to trial. The testimony is given under oath and is transcribed.
The deponent is given an **opportunity to correct his or her answers prior to signing the deposition**. Depositions are used to preserve evidence (e.g., if the deponent dies, is ill, or is not otherwise available at trial) and to **impeach testimony given by witnesses at trial.**
58
deponent
A party who gives his or her deposition.
59
interrogatories
Written questions submitted by one party to another party. The questions must be answered in writing within a stipulated time.
60
production of documents
A request by one party to another party to produce all documents relevant to the case prior to the trial.
If the documents sought are too volu- minous to be moved or are in permanent storage or if their movement would disrupt the ongoing business of the party that is to produce them, the requesting party may be required to examine the documents at the other party’s premises
61
physical or mental examination
A court-ordered examination of a party to a lawsuit before trial to determine the extent of the alleged injuries.
62
Discovery
| (3 items)
Type
1) **Deposition -** Oral testimony given by a deponent, either a party or witness. Depositions are transcribed. Written questions submitted by one party to the other party of a lawsuit. They must be answered within a specified period of time.
2) **Production of documents -** Copies of all relevant documents obtained by a party to a lawsuit from another party upon order of the court.
3) **Physical or mental examination -** Court-ordered examination of a party where injuries are alleged that could be verified or disputed by such examination.
[p. 53]
63
pretrial motion
A motion a party can make to try to dispose of all or part of a lawsuit prior to trial.
64
motion for judgment on the pleadings
A motion that alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts.
In deciding this motion, the **judge cannot consider any facts outside the pleadings.**
-----------------------------
**Example**: Example A plaintiff files a complaint alleging that the defendant breached an oral contract and allegedly owes the plaintiff damages. If the state’s statute of limita- tions requires that a lawsuit be brought within 2 years from the date that an oral contract was breached and the pleadings show that the lawsuit has been filed after the 2-year period has expired, the defendant can make a motion to have the plaintiff’s lawsuit dismissed based on the facts alleged in the pleadings.
-------------------------------------
**Internet**:
"The difference between the two is significant. A motion for **judgment on the pleadings**, or a motion to dismiss before fact discovery, is directed to the allegations in the complaint, not to any evidence. Such a motion challenges whether the plaintiff has stated a plausible claim for which relief can be granted. The court only considers the allegations in the complaint and any documents cited to or referred to in the complaint. In short, the court accepts as true each and every allegation made by the plaintiff and limits its inquiry to the legal sufficiency of the plaintiff's claim
By contrast, a motion for **summary judgment** is directed to the evidence. In this regard, the court searches the record and assesses the sufficiency of the parties' evidence. In effect, the court considers whether there are issues of material fact in dispute requiring a trial.
65
motion for summary judgment
A motion that asserts that there are no factual disputes to be decided by the jury and that the judge can apply the proper law to the undisputed facts and decide the case without a jury. These motions are supported by affidavits, documents, and deposition testimony.
Motions for summary judgment, which can be made by either party, are **supported by evidence outside the pleadings.** Affidavits from the parties and witnesses, documents (e.g., a written contract between the parties), depositions, and so on are common forms of evidence.
If the judge finds that a **factual dispute exists, the motion will be denied** and the case will go to trial.
66
settlement conference (pretrial hearing)
A hearing before a trial in order to facilitate the settlement of a case.
Pretrial conferences are often held informally in the ***judge’s chambers***. If no settlement is reached, the pretrial hearing is used to identify the major trial issues and other relevant factors.
67
trier of fact
The jury in a jury trial; the judge when there is not a jury trial.
68
voir dire
The process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions.
69
jury instructions (charges)
Instructions that the judge gives to the jury that inform the jurors of the law to be applied in the case.
70
judgment
The official decision of the court.
71
default judgment
The case proceeds if the defendant denies all or some of the allegations. If the defendant does not answer the complaint, a **default judgment** is entered against him or her. A default judgment establishes the defendant’s liability. The **plaintiff then has only to prove damages**.
72
electronic court (e-court)
A court that either mandates or permits the electronic filing of pleadings, briefs, and other documents related to a lawsuit. Also called a virtual courthouse.
73
electronic filing (e-filing)
The electronic filing of pleadings, briefs and other documents with the court.
74
Trial (8 stages)
1. Jury Selection
1. Federal courts and most state courts require a 12-person jury in criminal cases. Juries in civil cases are usually 6 to 12 jurors, depending on the juris- diction. Once the appropriate number of jurors is selected they are impaneled to hear the case and are sworn in.
2. Opening Statements
1. The information given in this statement is not considered as evidence.
3. The Plaintiff's Case
1. A plaintiff bears the **burden of proof** to persuade the trier of fact of the merits of his or her case. This is called the plaintiff’s case. The plaintiff’s attorney calls witnesses to give testimony.
2. After a witness has been sworn in, the plaintiff’s attorney examines (i.e., questions) the witness. This is called **direct examination**. Documents and other evidence can be introduced through each witness.
3. After the plaintiff’s attorney has completed his or her questions, the defendant’s attorney can question the witness. This is called **cross-examination**. The defendant’s attorney can ask questions only about the subjects that were brought up during the direct examina- tion.
4. After the defendant’s attorney completes his or her questions, the plaintiff’s attorney can ask questions of the witness. This is called **re-direct examination**.
4. The Defendent's Case
1. The defendant’s case proceeds after the plaintiff has concluded his or her case. The **defendant’s case must** (1) rebut the plaintiff’s evidence, (2) prove any affirmative defenses asserted by the defendant, and (3) prove any allegations contained in the defendant’s cross-complaint. The defendant’s witnesses are examined by the defendant’s attorney. The plaintiff’s attorney can cross-examine each witness. This is followed by re-direct examination by the defendant and re-cross-examination by the plaintiff.
5. Rebuttal and Rejoinder
1. After the defendant’s attorney has finished calling witnesses, the plaintiff’s attorney can call witnesses and put forth evidence to rebut the defendant’s case. This is called a **rebuttal**. The defendant’s attorney can call additional witnesses and introduce other evidence to counter the rebuttal. This is called the **rejoinder**.
6. Closing Arguments
1. Information given by the attorneys in their closing statements is not evidence.
7. Jury Instructions, Deliberation, and Verdict
1. After the judge reads the jury instructions, the jury retires to the jury room to consider the evidence and attempt to reach a decision. This is called jury **deliberation**, which can take from a few minutes to many weeks. After deliberation, the jury reaches a **verdict**.
8. Entry of Judgment
1. After the jury has returned its verdict, in most cases the judge enters a judgment to the successful party, based on the verdict. This is the official decision of the court. The court may overturn the verdict, however, if it finds bias or jury misconduct. This is called a **judgment notwithstanding the verdict (or judgment n.o.v. or j.n.o.v.).**
2. In a civil case, the judge may *reduce the amount of monetary damages* awarded by the jury if he or she finds the jury to have been biased, emotional, or inflamed. This is called **remittitur**.
The trial court usually issues a **written memorandum** that sets forth the reasons for the judgment. This memorandum, together with the trial transcript and evidence introduced at trial, constitutes the permanent **record** of the trial court proceeding.
75
appeal
The act of asking an appellate court to overturn a decision after the trial court’s final judgment has been entered.
In a civil case, either party can appeal the trial court’s decision once a final judgment is entered. Only the defendant can appeal in a criminal case. The appeal is made to the appropriate appellate court. A **notice of appeal** must be filed by a party within a prescribed time after judgment is entered (usually within 60 or 90 days).
The parties may designate all or relevant portions of the trial record to be submitted to the appellate court for review. The appellant’s attorney usually must file an **opening brief** with the court that sets forth legal research and other information to support his or her contentions on appeal. The appellee can file a **responding brief** that answers the appellant’s contentions. Appellate courts usually permit a brief oral argument at which each party’s attorney is heard.
An appellate court will reverse a lower court decision if it finds an **error of law** in the record.
76
appellant (petitioner)
The appealing party in an appeal.
77
appellee (respondent)
The responding party in an appeal.
78
alternative dispute resolution (ADR) aka nonjudicial dispute resolution
Methods of resolving disputes other than litigation.
The most common form of ADR is arbitration. Other forms of ADR are **negotiation**, **mediation**, **mini-trial**, **fact-finding**, and using a **judicial referee.**
79
negotiation
A procedure whereby the parties to a dispute engage in discussions and bargaining to try to reach a voluntary settlement of their dispute.
80
arbitration
A form of alternative dispute resolution in which the parties choose an impartial third party to hear and decide the dispute.
Arbitrators are usually members of the **American Arbitration Association (AAA**) or another arbitration association.
81
arbitration clause
A clause in a contract that requires disputes arising out of the contract to be submitted to arbitration.
82
Federal Arbitration Act (FAA)
A federal statute that provides for the enforcement of most arbitration agreements.
83
mediation
A form of alternative dispute resolution in which the parties use a mediator to possibly reach a settlement of their dispute.
84
electronic dispute resolution (e-dispute resolution)
Use of online alternative dispute resolution services to resolve a dispute.
85
electronic arbitration (e-arbitration)
The arbitration of a dispute using online arbitration services.
86
electronic mediation (e-mediation)
The mediation of a dispute using online mediation services.
87
U.S. Constitution
The fundamental law of the United States of America. It was ratified by the states in 1788.
88
federalism
The U.S. form of government in which the federal government and the 50 state governments share powers.
89
enumerated powers
Certain powers delegated to the federal government by the states.
90
legislative branch
The part of the U.S. government that makes federal laws. It is known as Congress (the Senate and the House of Representatives).
91
executive branch
The part of the U.S. government that enforces the federal law; it consists of the president and vice-president.
92
BASIC CONSTITUTIONAL CONCEPTS
| (5 items)
1) **Federalism** - The Constitution created the federal government. The federal government, the 50 state governments, and Washington DC share powers in this country.
2) **Delegated powers -** When the states ratified the Constitution, they delegated certain powers to the federal government. These are called enumerated powers.
3) **Reserved powers -** Those powers not granted to the federal government by the Constitution are reserved to the state governments.
4) **Separation of powers -** Each branch of the federal government has separate powers. These powers are the following: a. Legislative branch—power to make the law.
b. Executive branch—power to enforce the law.
c. Judicial branch—power to interpret the law.
5) **Checks and balances -** Certain checks and balances are built into the Constitution to ensure that no one branch of the federal government becomes too powerful.
[p. 71]
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Supremacy Clause
A clause of the U.S. Constitution that establishes the U.S. Constitution and federal treaties, laws, and regulations as the supreme law of the land.
94
preemption doctrine
A doctrine that provides that federal law takes precedence over state or local law.
95
Commerce Clause
A clause of the U.S. Constitution that grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes.”
96
Foreign Commerce Clause
Commerce with foreign nations. The Commerce Clause grants the federal government the authority to regulate foreign commerce.
97
police power
Power that permits states and local governments to enact laws to protect or promote the public health, safety, morals, and general welfare.
98
Dormant Commerce Clause
A situation in which the federal government has the Commerce Clause power to regulate an area of commerce but has chosen not to regulate that area of commerce.
99
unduly burdening interstate commerce
A concept that says states may enact laws that protect or promote the public health, safety, morals, and general welfare as long as the laws do not unduly burden interstate commerce.
100
Bill of Rights
The first 10 amendments to the Constitution that were added to the U.S. Constitution in 1791.
101
freedom of speech
The right to engage in oral, written, and symbolic speech protected by the First Amendment.
102
fully protected speech
Speech that cannot be prohibited or regulated by the government.
103
limited protected speech
Speech that the government may not prohibit but that is subject to time, place, and manner restrictions. Two major forms of limited protected speech are **offensive speech** and **commercial speech**.
104
offensive speech
Speech that is offensive to many members of society. It is subject to time, place, and manner restrictions.
105
commercial speech
Speech used by businesses, such as advertising. It is subject to time, place, and manner restrictions.
106
unprotected speech (6 types)
Speech that is not protected by the First Amendment and may be forbidden by the government.
1. **Dangerous speech**
1. Example Yelling “fire” in a crowded theater when there is no fire is not pro-
tected speech.
2. **Fighting words**
1. **** that are likely to provoke a hostile or violent response from
an average person10
Example Walking up to a person and intentionally calling that person names because of race or ethnicity would not be protected speech if it would likely cause the person being called the names to respond in a hostile manner.
3. **Speech that incites the violent or revolutionary overthrow of the government.**
1. ****However, the mere abstract teaching of the morality and consequences of such action is protected.
4. Defamatory language
1. libel and slander
5. Child pornography
6. Obscene speech
107
obscene speech
Speech that (1) appeals to the prurient interest, (2) depicts sexual conduct in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value.
States are free to define what constitutes obscene speech.
108
Establishment Clause
A clause of the First Amendment that prohibits the government from either establishing a state religion or promoting one religion over another.
109
Free Exercise Clause
A clause of the First Amendment that prohibits the government from interfering with the free exercise of religion in the United States.
110
FREEDOM OF RELIGION
| (2 items)
Clause
1) **Establishment Clause -** Prohibits the government from establishing a government-sponsored religion and from promoting one religion over other religions.
2) **Free Exercise Clause -** Prohibits the government from enacting laws that either prohibit or inhibit individuals from participating in or practicing their chosen religions.
[p. 81]
111
Fourteenth Amendment
An amendment added to the U.S. Constitution in 1868 that contains the Due Process, Equal Protection, and Privileges and Immunities clauses.
112
Equal Protection Clause
A clause that provides that a state cannot “deny to any person within its jurisdiction the equal protection of the laws.”
113
strict scrutiny test
A test that is applied to determine the constitutionality of classifications by the government that are based on a suspect class (e.g., race, national origin, and citizenship) or a fundamental right (e.g., voting rights).
**Suspect classification** refers to a class of individuals that have been **historically subject to discrimination.**
Example A government rule that permits persons of one race but not of another race to receive government benefits such as Medicaid would violate this test.
114
intermediate scrutiny test
A test that is applied to determine the constitutionality of classifica- tions by the government that are based on a protected class other than a suspect class or a funda- mental right (e.g., gender).
**Suspect classification** refers to a class of individuals that have been **historically subject to discrimination**
**Example** The federal government’s requirement that males (upon reaching the age of 18) must register for a military draft but that females do not have to register for the draft has been held to be constitutional by the U.S. Supreme Court.
115
rational basis test
A test that is applied to determine the constitutionality of classifica- tions by the government that do not involve a suspect class, a fundamental right, or a protected class (e.g., age).
**Example** Providing government **subsidies to farmers** but not to those in other occupations is.
**Example** The federal government’s **Social Security program,** which pays benefits to older members of society but not to younger members of society, is lawful. The reason is that older members of society have earned this right during the course of their lifetimes.
116
Due Process Clause
A clause that provides that no person shall be deprived of “life, liberty, or property” without due process of the law.
117
substantive due process
A category of due process that requires government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope.
118
procedural due process
A category of due process that requires that the government give a person proper notice and hearing of the legal action before that person is deprived of his or her life, liberty, or property.
119
Takings Clause
A clause that allows the government to take property for public use.
120
Just Compensation Clause
A clause that requires the govern- ment to compensate a property owner when the government takes the owner’s property.
121
Privileges and Immunities Clauses
Constitutional provisions that pro- hibit states from enacting laws that unduly discriminate in favor of their residents.
122
opinions issued by the supreme court
A justice who agrees with the outcome of a case but not the reason proffered by other justices can issue a **concurring opinion** that sets forth his or her reasons for deciding the case. A justice who does not agree with a decision can file a **dissenting opinion** that sets forth the reasons for his or her dissent.
123
4 types of decisions issued by the Supreme Court
1. **Unanimous decision.**
2. **Majority decision.**
3. **Plurality decision.** If a majority of the justices agree as to the outcome of a case but not as to the reasoning for reaching the outcome, it is a plurality deci- sion. A plurality decision settles the case but is not precedent for later cases.
4. **Tie Decision.** Sometimes the Supreme Court sits without all 9 justices being present. This could happen because of illness, conflict of interest, or a justice not having been confirmed to fill a vacant seat on the Court. **If there is a tie decision, the lower court decision is affirmed. Such votes are not precedent for later cases.**
124
How many votes are required by the Supreme Court to grant a reivew of a case?
The votes of 4 justices are necessary to grant an appeal and schedule an oral argu- ment before the Court; this is called the **rule of four**.
125
Full Faith and Credit Clause
Under the **Full Faith and Credit Clause** of the U.S. Constitution (Article IV, Section 1), a judgment of a court of one state must be given “full faith and credit” by the courts of another state.
**Example** A plaintiff wins a dollar judgment against a defendant in California court. The defendant owns property in Ohio. If the defendant refuses to pay the judgment, the plaintiff can file a lawsuit in Ohio to enforce the California judg- ment and collect against the defendant’s property in Ohio.
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long-arm jurisdiction
The exercise of long-arm jurisdiction is generally permitted over nonresidents who have (1) committed torts within the state (e.g., caused an automobile acci- dent in the state), (2) entered into a contract either in the state or that affects the state (and allegedly breached the contract), or (3) transacted other business in the state that allegedly caused injury to another person.
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submission agreement
If there is no arbitration clause, the parties can enter into a **submission agreement** whereby they agree to submit a dispute to arbitration after the dispute arises.
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Uniform Arbitration Act
Congress enacted the Federal Arbitration Act to promote the arbitration of disputes. Many states have adopted the **Uniform Arbitration Act**, which promotes the arbitration of disputes at the state level.
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binding arbitration
The parties often agree in advance to be bound by the arbi- trator’s decision and remedy. This is called **binding arbitration**. In this situa- tion, the decision and award of the arbitrator cannot be appealed to the courts.
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nonbinding arbitration
If the arbitration is not binding, the decision and award of the arbitrator can be appealed to the courts. This is called **nonbinding arbitration**. Courts usually give **great deference to an arbitrator’s decision and award.**
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Major pretrial phases
The pretrial litigation process can be divided into the following major phases: **pleadings**, **discovery**, **pretrial motions**, and **settlement conference.**
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class action waivers
To curtail the use of class actions in arbitration, many companies place class action waivers in their arbitration agreements. This prevents defendants subject to the class action waiver from joining together to pursue a single defendant in an arbitration proceeding.
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impeach
call into question the integrity or validity of (a practice).
"there is no basis to Searle's motion to impeach the verdict"
synonyms:challenge, question, call into question, cast doubt on, raise doubts about
"the headlines did much to impeach their clean image"
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impracticable
adjective: impracticable
(of a course of action) impossible in practice to do or carry out.
"it was impracticable to widen the road here"
synonyms:unworkable, nonviable, impossible to carry out, unfeasible, inoperable, out of the question, not worth considering, unachievable, unattainable, unrealizable; More
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another term for pretrial hearing is \_\_\_\_\_\_\_\_\_
another term for settlement conference is a pretrial hearing
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judgment notwithstanding the verdict (or judgment n.o.v. or j.n.o.v.).
The court may overturn the verdict, however, if it finds bias or jury misconduct.
This is called a judgment notwithstanding the verdict (or judgment n.o.v. or j.n.o.v.).
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remittitur
In a civil case, the judge may reduce the amount of monetary damages awarded by the jury if he or she finds the jury to have been biased, emotional, or inflamed. This is called **remittitur**.
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written memorandum
The trial court usually issues a written memorandum that sets forth the reasons for the judgment. This memorandum, together with the trial transcript and evidence introduced at trial, constitutes the permanent record of the trial court proceeding.
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who can appeal in the following
1) civil case
2) criminal case
In a **civil case**, **either** party can appeal the trial court’s decision once a final judgment is entered.
**Only** the **defendant** can appeal in a **criminal case.** The appeal is made to the appropriate appellate court. A notice of appeal must be filed by a party within a prescribed time after judgment is entered (usually within 60 or 90 days).
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appellant
The appealing party ina an appeal.
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Can an appellate court reverse a finding of fact?
An appellate court will not reverse a finding of fact made by a jury, or made by a judge if there is no jury, unless such finding is unsupported by the evidence or is contradicted by the evidence.
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Other forms of ADR
Other forms of ADR are negotiation, mediation, mini-trial, fact-finding, and using a judicial referee.
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effects on interstate commerce test
Under the effects on interstate commerce test the regulated activity does not itself have to be in interstate commerce. Thus, any local (intrastate) activity that has an effect on interstate commerce is subject to federal regulation.
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Is e-commerce subject to regulation under the Commerce clause?
Because e-commerce is commerce, it is subject to the Commerce Clause of the U.S. Constitution
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incorporation doctrine
The Supreme Court has applied the **incorporation doctrine** and held that most of the fundamental guarantees contained in the Bill of Rights are applicable to state and local government action.
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Identify the relavent Articles of the Constitution in regards to the doctrine of Separation of Powers
1) article 1: legislative branch
2) article 2 the executive branch
3) article 3: judicial branchh
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requirements for impeachment
**Example** The House of Representatives has the power to impeach the president for certain activities, such as treason, bribery, and other crimes. The Senate has the power to try an impeachment case. A two-thirds vote of the Senate is required to impeach the president.
Wiki: Impeachment in the United States is the process by which the lower house of a legislature brings charges against a civil officer of government for crimes alleged to have been committed, analogous to the bringing of an indictment by a grand jury. At the federal level, this is at the discretion of the House of Representatives. Most impeachments have concerned alleged crimes committed while in office, though there have been a few cases in which officials have been impeached and subsequently convicted for crimes committed prior to taking office.[1] The impeached official remains in office until a trial is held.
**That trial, and their removal from office if convicted, is separate from the act of impeachment itself.** Analogous to a trial before a judge and jury, these proceedings are (where the legislature is bicameral) conducted by upper house of the legislature, which at the federal level is the Senate.
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Indian Gaming Regulatory Act
Congress passed the Indian Gaming Regulatory Act,7 a federal statute that establishes the requirements for conducting casino gambling and other gaming activities on tribal land. This act allows Native Americans to negotiate with the states for gaming compacts and ensures that the states do so in good faith. If a state fails to do so, the tribe can bring suit in federal court, forcing the state to comply.
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What are the standards of review regarding the Equal Protection Clause of the 14th Amendment?
1. strict scrutiny
2. intermediate scrutiny
3. rational basis
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Fifth Amenment
The first question presented asks whether the government’s categorical duty under the **Fifth Amendment** to pay just compensation when it physically takes possession of an interest in property, applies only to real property and not to personal property. The answer is no. **The Gov- ernment has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.** The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee.
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