E Flashcards
1.The definition of business law
The enforceable rules of conduct that govern commercial relationships ( commercial meaning “ for the purpose of making A profit “
ii. The six areas of a business affected by the law
Management, production and transportation, marketing, research and development, accounting and finance, and human resource
i. Legal positivism
Sees our proper role as obedience to duly authorized law
ii. Natural Law
Certain ethical laws and principles believed to be morally right and above the laws devised by humans. Individuals have not only basic human rights but also the freedom to disobey a law enacted by people if their conscience goes against it and they believe it is wrong.
iii. Legal realism
Is based on the idea that when ruling on a case judges need to consider more then just the law, they also weigh factors such as social and economic conditions, since legal guidelines were designed by humans,
iv. Historical Theory
One of the guidelines most often used for shaping the law is tradition, or custom. When we follow tradition instead of reinventing the wheel, we link our behavior to the behavior of those who faced similar problems in time periods. We assume past practice was the product of careful thought.
v. Cost-benefit
To examine all its cost and place A monetary value on it. Choosing the alternative that maximized benefits and minimized cost
What the major legal system are around the world
Civil law, common law, socialist law, Islamic law ( Shari )
i. Civil Law Tradition
strongly influenced by the French civil code of 1804 and the German civil code of 1896 the codes generally covered areas of private law, such as property, contracts, tort and family law and 10 to reflect preference for the protection of private property individual freedom and freedom of contract today’s code in civil law system serve as the official source of law source include custom in general principles of law president is not an important source of civil law.
ii. Socialist Legal Tradition
Are based on the premise that the rights of society as a whole outweigh, the rights of the individual in such systems law does not act as a limit on the exercise of government power. this common law system exist in Cuba, North Korea.
iii. Islamic Legal System, also called Shari
Based on the fundamental tent, that law is derived from and interpreted in harmony with Shari ( God‘s law ), and the Koran the preeminent concern is moral conduct such as honoring agreements and acting in good faith
iv. Common law (our system)
originated in the English legal system, English common law began in 1066 when William the conqueror assumed the English throne, the centralization of government that followed paved the way of a centralized court system in the common law system the court develop rules, governing areas of law in tradition to relying on constitutions, legations and regulations they are guided by precedent or Stare decisis thus if a higher court has created a precedent, a lower court is bound by the precedent however, if a court cannot find a precedent to guide is reasoning, it may offer its own rule both the emphasis on the precedent and the judges ability to create rules are important characteristics of common law system common law system exist in Australia, India and the United Kingdom and the United States
i. The three branches of government and their functions
To allocate authority between state and federal governments, the constitution allocates the power of the federal government among the three branches of government, the first three articles of the constitution established three independent branches of the federal government, the legislative executive and judicial branch the constitution ensures that each branch maintains separates spheres of power to prevent one branch from obtaining undo power, and monopolizing control of government. Legislative makes loss congress compromised of the house of Representative and Senate executive carries out the loss, president vice president cabinet and most federal agencies, judicial evaluates laws Supreme Court and other courts.
ii. The system of checks and balances under the constitution
Each branch power keeps the other branch from dominating the government. Congress, the legislative and lawmaking branch has a power to enact legislations, but the president can veto a law that Congress passes the legislature, however, can overturn the presidential veto with a 2/3 of the member of Congress and if Congress passes, the bill and the president signs it the judiciary can strike it down as constitutional
What are the following classifications of law?
i. Private vs. Public
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ii. Civil vs. Criminal
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iii. Constitutional law
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iv. Statutes
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v. Common law
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Stare decisis and case precedent
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vi. Administrative law
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vii. Treaties
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viii. Executive orders
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Understand the structure of the federal courts
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- Trial courts: make initial determination of facts and law
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a. U.S District Trial Courts: Federal criminal cases, non-exclusive federal questions, and state diversity cases
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b. Specialized Trial Courts: Courts that handle one area of law (i.e., Bankruptcy, Tax Court etc…)
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- U.S. Court of Appeals
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a. Either side may appeal and the court must take the case
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b. Prejudicial error
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- U.S. Supreme Court: p
a. Appeals are discretionary
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b. Writ of certiorari
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b. Understand the Structure of State Courts: Most state courts follow the federal model
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c. Threshold Requirements for Filing and Maintaining a Lawsuit
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i. Jurisdiction
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ii. Case in controversy
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iii. Standing
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iv. Moot cases
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v. Ripeness
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d. Forms of Jurisdiction & Related Issues
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Original vs. Appellate Jurisdiction
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- Trial courts: Generally original and handle questions fact
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- Courts of Appeal: Generally, handle appeals & mistakes of law in the
trial court
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Subject matter jurisdiction over the subject matter
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- Federal Court Exclusive Jurisdiction: Specialized courts (Bankruptcy Court, Tax Court etc. . .)
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- State Court Exclusive Jurisdiction
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a. Adoption & Divorce
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b. State based cases with no diversity jurisdiction
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- Concurrent Jurisdiction (Both Federal and State)
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a. All federal question cases not covered under federal exclusive jurisdiction
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b. Diversity cases
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- Due process and service of the complaint
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- Location of a corporation for in personum jurisdiction
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- Long Arm Statutes
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In REM: jurisdiction over property
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- Example: Court ordering property be sold to pay for property taxes
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e. Related Jurisdiction Issues
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Right of removal
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Venue
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Forum selection clauses and choice of law
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i. Federalism & Police Power
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ii. Supremacy Clause of Article IV
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- Preemption
- Concurrent authority with states
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The commerce clause, federal governments authorization to regulate commerce
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The doormat commerce clause, a state limitations for creating laws under the commerce clause
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c. Understand the purpose of the following constitutional amendments
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Bill of Rights first 10 amendments
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- 1st Amendment Right of Free Speech
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a. Protections for
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Political speech
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Commercial speech
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b. Unprotected speech: Obscenity & the Miller test
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- Due Process of 5th & 14th Amendments
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a. Procedural
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b. Substantive
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c. Difference between the two
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- 5th Amendment Taking Clause: Compensation for taking
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ii. 14th Amendment & Equal Protection
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What are the three levels of scrutiny
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Strict scrutiny
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Mid-level
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Rational bias test
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International law
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Ways of doing business internationally
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i. Franchise agreement
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ii. Licensing agreements
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iii. Company options
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Joint venture
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Foreign subsidiary/affiliate
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i. The general function of GATT
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ii. Concepts under GATT: p
Tariffs
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Non - tariff barriers
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iii. Know the following provisions in the GATT agreement and their purpose
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- Creation and function of WTO
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- Normal trade relations
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- Prohibitory quantitative restrictions
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- Prohibitory dumping
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i. NAFTA
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ii. EU
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i. Ethics & business ethics
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ii. Social responsibility of business
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iii. The distinction between law and ethics
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iv. Stakeholder Framework
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i. Golden rule
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ii. Universalization test
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iii. Absolutism
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iv. Consequentialism
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v. Cost-Benefit
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