CH 01, 04, 06 Business Law by Beatty Samuelson Abril 8th Edition Flashcards
CH01 What is stare decisis?
The principle that precedent is binding on later cases is called stare decisis, or “let the decision stand.”
(p 9)
CH01 Define the powers: Legislative, Executive and Judicial.
Legislative: The ability to create new laws in Congress according to Article I of the U.S. Constitution.
Executive: is the authority to enforce the laws per Article II of the U.S. Constitution. Creates the President.
Judicial: right to interpret laws and their validity per Article III f the U.S. Constitution.
(p 7.)
CH01 Who helped to establish precedent and how?
Henry de Bracton in 1250 wrote a legal treatise called De Legibus et Consuetudinibus Angliae (On the Law and Customs of England) written in Latin. Teaching judges to rule base on previous cases.
(p 5)
CH01 What does Civil Law do?
Civil Law regulates the rights and duties between parties.
p 10
CH01 What does Criminal Law do?
Criminal Law concerns behavior so threatening that society outlaws it altogether.
(p 10)
CH01 What is legal positivism and what is a legal positivist?
The sovereign is the recognized political power whom citizens obey. In the United States both the state and federal governments are sovereign. A legal positivist states that whatever the sovereign declares to be the law, is the law, whether right or wrong. There seems to be no room for questions of morality.
(p 12)
CH01 What is Natural Law?
In Summa Theologica, St. Thomas Aquinas (1225-74) argued that:
an unjust law is no law at all and need not be obeyed.
He says that law must have a moral basis.
(p 13)
CH01 What is Legal Realism?
Legal Realists say that:
what is written as law does not matter;
what matters is who enforces the law and by what process is the law enforced.
Personal characteristics determine which contract will be enforced and which will be ignored, why some criminals get off lightly and others receive harsh sentences.
(p 13)
CH01 What is Jurisprudence? Name the 3 theories of Jurisprudence.
Jurisprudence is the real nature or basic nature of law. A summary of Jurisprudence can be read on pages 12 and 13: Legal Positivism or what the sovereign says the law is, Natural Law or the premise that an unjust law is no law at all and Legal Realism or who enforces the law is more important than what the law actually says.
(p 12)
CH01 What are the sections of a case? What are their purpose?
Facts Section: provides background to the suit, written by the authors of this text.
Issue Section: Tells what the court had to decide, and why you are reading the case.
The Holding: Excerpts from the judge’s decision. It is a statement of who wins and who loses.
The court’s rationale is the reasoning behind the decision.
(p 15)
CH01 What is remanding a case?
A lower court’s decision is reversed and it is remanded or sent back down to the court. If the case is affirmed the previous decision remains unchanged.
(p 16)
CH01 Name six primary sources or types of law.
The United States Constitution and state constitutions.
Statues drafted by legislatures.
Common law or the body of cases decided by judges as they follow earlier cases, called precedent.
Court Orders which place obligations on specific people or companies.
Administrative law or the rules and decisions made by state and federal administrative agencies.
Treaties and agreements between the United States and foreign nations.
(p 19)
CH01 What is the difference between Criminal and Civil Law?
Criminal law involves behavior that is threatening to society and that behavior is outlawed altogether.
Civil Law is about duties and disputes between parties.
(p 19)
CH01 We are a federal system of government. Where does law come from in our system?
In our federal system of government laws come from the 50 state governments and from our national government in Washington D.C.
(p 18)
CH01 What is legal history? Name 6 ways in which the history of law can foreshadow current legal issues.
Mediation Partnership Liability The Jury System The role of witnesses Special value placed on land Precedent (p 18)
CH06 How many systems of courts does the United States have?
More than 50. One nationwide system of federal courts. A court system in each of 50 states. Each has special powers and limitations. (p 140)
CH06 What form do court systems take in states?
In state courts, the system is typically in the form of a pyramid. They have special powers and certain limitations.
Texas has two top courts: a Supreme Court for civil cases and a Court of Criminal Appeals for criminal cases.
(p 140)
CH06 Where do most cases start?
How is court structured?
What is jurisdiction?
In trial courts. There is one judge and will usually but not always include a jury.
This is the only court to receive evidence and hear testimony.
Trial courts determine case facts and apply those to the law based on precedence.
Jurisdiction is the power of a court to hear a case. Some courts have limited jurisdiction and others can hear nearly any case.
(p 142) see also (p 146)
CH06 What is a litigator?
A lawyer that handles court cases.
p 140
CH06 What is alternative dispute resolution?
Other than a lawsuit, alternative dispute resolution is settling a dispute without going to trial. It can be cheaper and faster than litigation.
(p 140)
CH06
A) What is subject matter jurisdiction?
B) What are Trial Courts of Limited Jurisdiction? Examples?
C) What are Trial Courts of General Jurisdiction?
A) The court has authority to hear a particular type of case.
B) These courts hear only certain kinds of cases. Small Claims Court civil suits of lower dollar amount, Juvenile Court hears cases involving minors. Probate Court settles estates of the deceased.
C) These hear a broad range of cases. The general civil division can hear any civil lawsuit.
(p 142)
CH06 What is Personal Jurisdiction?
What are its general requirements?
Courts have jurisdiction per subject matter and also have personal jurisdiction over the defendant.
Personal jurisdiction is the authority over the defendant and requires the defendant to stand trial, pay judgements, etc.
The defendant my possibly make a special appearance to challenge a court’s personal jurisdiction. If the court is in agreement the suit will be dropped.
Individuals: is a resident of the state where the suit is being filed. The defendant defends the lawsuit. Papers regarding the case that are filed count as formal steps. Special appearances do not. A summons is served on the defendant. The defendant must be in the state when the summons is served.
Companies: the company is doing business in that state. Corporations must hire a registered agent in any state where they do business. The agent receiving the summons means that the corporation has been served.
Also, see long-arm statute.
(p 142)
CH06 What is a long-arm statute?
If the defendant does not reside in the state, does not defend the lawsuit, has not been served a summons while in the state, the court is able to obtain jurisdiction under a long-arm statute.
These statutes typically claim jurisdiction over someone who commits: a tort, signs a contract, conducts “regular business activities” in the state.
Courts tend to apply long-arm statutes aggressively.
Due process guarantee by the U.S. Constitution requires fundamental fairness.
The defendant must have minimum contacts with a state.
Landmark case: International Shoe v. State of Washington.
(p 142, 143 for landmark case)
CH06 What are Appellate Courts and how many judges do they have? Are there juries? Do they hear witnesses? Do they take new evidence?
From website uscourts.gov: The appellate court’s task is to determine whether or not the law was applied correctly in the trial court.
Appellate Courts have three or more judges.
There are no juries.
They do not hear witnesses.
They do not take new evidence.
They read the records of the lower court to make their decision.
They check to make sure there are not errors of law.
(p 144)
CH06 What is the higher court position on lower court factual finding?
Why?
They review the trial record to check if the law was applied to the facts. If there is an error of law, possibly new trial.
They generally defer to lower courts on factual findings unless they find that there was no evidence at all to support it.
Juries and trial court judges see the evidence as it is presented and are in a better position to evaluate it.
(p 144)
CH06 What is the difference between the Appellate Courts and the Court of Appeals?
From the website uscourts.gov:
The appellate court’s task is to determine whether or not the law was applied correctly in the trial court.
A court of appeals hears challenges to district court decisions from courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court of International Trade and the U.S. Court of Federal Claims.
https://www.uscourts.gov/about-federal-courts/court-role-and-structure#:~:text=The%20appellate%20court’s%20task%20is,correctly%20in%20the%20trial%20court.&text=A%20court%20of%20appeals%20hears,decisions%20of%20federal%20administrative%20agencies.
CH06
Court of Appeals:
What are the parties called?
What are the written arguments called?
How much time do the appellant’s and appellee’s lawyers have to convince the judge that the trial judge made serious errors of law?
What are the Court of Appeals decisions called (for or against)?
The party filing the appeal is the appellant.
The party opposing the appeal is the appellee.
The written arguments are called briefs.
Time to convince the judge by both sides? About 15 minutes each.
The Court of Appeals decisions are reversed (nullified) or affirmed.
(p 144)
CH06
The State Supreme Court is the highest court in the state.
What cases does it accept?
Can it refuse a case and if so, why?
How many judges in most states and what are they called?
The State Supreme Court accepts some appeals from the Court of Appeals. In most states there is no absolute right to appeal to the Supreme Court. The Supreme Court will accept only cases it considers important.
It then takes briefs and hears oral arguments just as the appeals court did.
Most states have seven judges and are called justices. They are the final word on state law.
(p 144)
CH06 How were the federal courts established?
Are there limitations on what cases are brought to federal courts? What kinds of suits?
The federal courts were established by the U.S. Constitution.
The Constitution limits what kinds of cases can be brought in any federal court.
Two kinds of civil lawsuits are permitted in federal court for this class: federal question cases and diversity cases.
(p 144)
CH06 What is a federal question case?
A federal question case is a case that has a claim based on the U.S. Constitution, a federal statute or a federal treaty.
It does not cover, for example, a question regarding an insurance contract. (Point of illustration.)
(p 145)
CH06 When do federal courts have diversity jurisdiction?
1) the plaintiff and the defendant are citizens of different states and
2) the amount in dispute exceeds $75,000.00.
(p 146)
CH06 What is the theory behind diversity jurisdiction?
Why use the federal court?
The courts of one state might be biased against the citizens of another state.
The federal court can be used as a neutral playing field.
(p 146)
CH06 Name some Trial Courts and what they do.
United States District Court - the primary trial court in the federal system.
Bankruptcy Court
Tax Court
U.S. Court of International Trade
U.S. Claims Court - cases against the United States (often times contract disputes)
Foreign Intelligence Surveillance Court - surveillance warrants against foreign agents
(p 146)
CH06 In the United States District Court, how many districts are there in the United States?
About 94 districts and each has its own court. Smaller states might have just one district, larger states multiple districts. Texas has 4.
(p 146)
CH06
How are federal court judges appointed?
What is the process?
How long do they serve?
The longest serving judge?
The President of the United States nominates all federal court judges, from district court to the Supreme Court.
The nominees are confirmed by the Senate.
They serve for life “in good behavior”
The longest serving judge was Judge Wesley Brown of Kansas who served, hearing cases, until he died at age 104.
(p 146)
CH06 What are the Appellate Courts?
The United States Courts of Appeals
The United States Supreme Courts
(p 146)
CH06 Describe the United States Courts of Appeals.
These are intermediate courts of appeals, divided into circuits, or geographical areas.
There are 11 numbered circuits.
They hear appeals from district courts. Example: appeal from Northern District of IL goes to Court of Appeals Seventh Circuit.
District of Columbia: a twelfth court, hears appeals only for Washington D.C.
Many suits regarding federal statutes start in the District of Columbia.
Also in WDC is the Thirteenth Court of Appeals or Federal Circuit which hears specialized trial courts.
(p 146)
CH06
How many judges are in the circuits?
How many judges hear an appeal?
What evidence to they review?
Up to 50 in the largest Circuit Court, which is the Ninth.
Three judges hear an appeal.
The judges take briefs and hear oral arguments.
(p 146)
CH06
What is a writ of certiorari?
How many justices must vote in favor of hearing the case?
How many requests does the U.S. Supreme Court hear a year and how many requests are made?
What do the cases that are accepted generally involve?
When a case is to be reviewed by the United States Supreme Court, a petition for a write of certiorari must be filed requesting the court to hear the case.
Four of the nine judges must vote in favor of hearing the case.
Typically several thousand requests are made a year and the court generally accepts fewer than 100.
The cases generally involve an important constitutional law issue or an interpretation of a major federal statute.
CH06 How many justices are on the Supreme Court?
How are the votes weighted?
Nine justices are on the U.S. Supreme Court.
Each justice casts an equal vote.
(p 147)
