Exam 1 Flashcards
Business Law
Interaction between public and private sectors
Article 1
Lays out the congress and enumerates it powers
Article 1 Section 8
Enumerated Powers:
1) Levy and collect Taxes
2) Borrow money against the credit of the US
3) Regulate Interstate and Foreign Commerce*
4) Establish uniform rules of naturalization and bankruptcy
5) Coin money and set standards of weights and measures
9) Constitute Tribunals inferior to the US supreme court
18) Necessary and Proper Clause
Necessary and Proper Clause
Congress may make all laws necessary and proper to carry out its remit
Article 1 Section 9
Congress may not:
1) Suspend the Writ of Habeas Corpus except in time of invasion or rebelling
2) Pass Ex Post Facto laws
States May Not:
1) Pass Ex Post Facto laws
2) Impair freedom of cntract
Article 2
The Executive Article:
-Establishes the Federal Executive; The President
-The Executive carries out the laws passed by the legislature
-Elected by the Electoral College
Powers of the President
The President May:
1) Appoint Federal Officers
Judges are special, appointed by pres., approved by senate
2) Grant Pardons
3) Veto Legislation
4) Act as commander in chief of the US armed forces
Article 3
Judiciary Article:
Establishes the Supreme Court
Article 3 Section 1
“The Judicial Power of the US is vested in the Supreme Court”
Federal Jurisdiction
1) All cases involving federal law
2) Cases involving ambassadors, ministers, and consuls of foreign nations
3) Admiralty and Maritime cases
4) US is a party to the case
5) Controversy between two or more states
6) Controversy between a state and a citizen of another state
7) Citizens of different states (Diversity jurisdiction)
8) Constitutional Issue
Supreme Court Original Jurisdiction
1) Cases involving foreign diplomacy
2) Controversy between states
3) Controversy between a state and citizen of another state
Supreme Court Concurrent Jurisdiction
1) Controversy between citizens of different states
2) Constitutional issues
Jury Trial
Provided in article three that you are: Only guaranteed a jury in federal court. Jury only available w/ risk of imprisonment. Otherwise, case decided by judge.
Article 4 Section 1: Full Faith and Credit Clause
The states must give full faith and credit to the:
1) Public acts
2) Records
3) Judicial Proceedings
of the other states.
Article 4 Section 2: Privileges and Immunities Clause:
All citizens of any state are entitled to all privileges and immunities of citizens of any other state. Applies to the Citizens of the US.
Article 6 - Supremacy
The Federal constitution prevails over state constitutions in the event of conflict. Federal laws are supreme over state laws in the event of conflict.
Article 6 Section 3
There can be no religious tests required to hold office.
Amendment 1
Establishes freedom of:
-Speech
-Religion
-Press
-Assembly
In regards to the government (not private entities)
Restrictions on Freedom of Speech
Prohibited Speech includes:
-Matters of National Security
-Declaring Present Danger Test
-Anything covered under criminal law
–Libel
–Slander
Libel and Slander
Requirements to establish Libel/Slander has occurred:
1) Speech must be false or create a false impression.
2) Must be published (witnessed by at least one third party)
3) Must injure the reputation
Public Officials must prove:
1) All previous requirements
2) Malicious Intent
Public Figures must prove:
1) Initial 3 requirements
2) the use of poor reporting techniques
Freedom of Religion
Free Exercise Clause:
-The government can not pass a law abridging the free exercise of religion
Establishment Clause
-The government can not pass a law establishing(favoring) a religion
Boils down to separation of church and state
Freedom of Assembly
The right to assemble regardless of other factors, except in violation of other criminal or traffic laws
Second Ammendment
‘The right of the people to keep and bear arms shall not be infringed”
Reasonable Searches and Seizures:
1) Stop and Frisk (Terry v. Ohio)
2) Incident to a lawful arrest
3) Incident to a lawful incarceration
4) Under authority of search warrant
5) Probable cause w/o time to obtain search warrant
6) Vehicle lawfully in custody
7) Evidence in plain view (any sense, including sight)
8) Consent to search
9) Any other reasonable search and seizure
Jury Size
Ohio:
8 For Misdemeanor
12 For Felony
8 Person for civil trial (somebody has to pay for it)
Possible Criminals Penalties:
1) Fine (to government)
2) Imprisonment
3) Death
Note: Victim is not made whole through criminal penalties.
Due Process Clause (5th Amendment)
The Government cannot deprive the citizens of life, liberty, or property without the due process of law
Procedural Due Process
Requires:
1) Reasonable Notice
2) A fair hearing
For Legislative Enactments:
3) Not too broad - Doesn’t include people it shouldn’t
4) Not too narrow - Includes everyone it should
5) Not Vague - The meaning of the statute’s text can be determined
3-5 only applied of the law is challenged by citizens.
‘If you have the power to write laws, you have the responsibility to write them well.’
Police power
The power of the government to deprive of property without due process in order to uphold the public health, safety, welfare, or morals.
Eminent Domain
Government cannot take private property for public use without Just compensation.
-“Just compensation determined by jury at the ‘fair hearing’.
-Quasi governmental entities can utilize Eminent Domain, contingent on state law.
Substantive Due Process
Applies to Legislative Enactments:
1) Must have Proper Purpose
2) Penalty must bear reasonable relationship to the purpose
3) The law must not be arbitrary in its application
Discrimination
Discrimination between or among: Acceptable
Discrimination Against in an Evil or Invidious Sense: Unacceptable
6th Ammendment
Guarantees:
1) Speedy and public trial - Serious felonies must go to trial within 270 days, with each day in jail counting as three days. Less serious crimes have less time to go to trial. (Numbers are Ohio specific)
2)Impartial jury
-Selection via voir dire: Many more than 8+1 alternate brought in.
–Challenges for cause: Judge removes anyone who has legitimate reason to be removed at Attys’ (P and D) request
–Preemptory Challenges: usually three per side, remove anyone you want for no reason.
3) The right to be informed of the “nature and cause” of the prosecution (what you are being charged with)
4) Confrontation of Witness (cross examination)
5) Compulsory process to obtain witness in your favor (subpoena)
6) Assistance of counsel (at any critical stage)
- will be provided for you if you are indigent
8th Amendment
1) Prohibits excessive Bail/Fines
2) Prohibits cruel and unusual punishment
- Leaves only fine, imprisonment, and death.
9th Ammendment
The fact that the previous 8 amendments list the rights of citizens does not mean that those rights did not exist before they were written down, nor does it mean those are the only rights of the citizens.
10th ammendment
All powers not delegated to the Congress are reserved to the people and to the states.
Indicators of Tyranny
-Wages War
-Commits genocide against own people
-Architectural style
-Centralized Power
-Use of Coercion or Fear
-Cheap Labor
-Technological Advancement
-Institutionalization
-Protection of the Elite
-Maintenance of the Status Quo
-failure
Every System is a balance of Tyranny and Liberty. The U.S. has moved (slightly) towards Tyranny over time.
13th Ammendment
1) Prohibits Slavery
2) Prohibits Involuntary Servitude
14th Ammendment
-Applies to the States
-Incorporates Amendments: 1,2,4,5,6,8; meaning these also now apply to the states.
–Privileges and Immunities Clause, for the states
–Dur process clause (5th amendment) now applies to the states.
-Equal Protection Clause
– Only applies to the states AS WRITTEN
—Applies to the Federal government through the incorporation of the 14th amendment into the 5th amendment’s due process clause.
–Applies to legislative enactments, which now must pass
—Procedural due process
— Substantive Due Process
— Classification Test
Classifications
The Grouping of People
1) “There can be no arbitrary or unreasonable classifications among persons”
2) “There can be no discriminatory classifications among persons”
Classifications Invalid Per Se
Those based on Race.
-Always unconstitutional
Inherently Suspect Classifications
Those based on:
1) Alien status
2) Residency
-Burden is on the government to prove a compelling state interest if the law is challenged and ISC are in place.
Suspect Classifications
Those based on:
1) Sex/Gender
2) Illegitimacy (of children)
3) Zoning/voting districts
4) Age
5) Indigency
6) Felon or Prisoner status
Burden is on the government to show “reasonably or rationally related interest” if a challenged law employs a suspect classification.
15th ammendment
Prohibits banning men from voting: All men over 21 can vote. Period.
16th Amendment
Allows the levy of an income tax
18th Ammendment
Prohibition of Alcohol; repealed in 21st amendment.
19th Ammendment
Permits women to vote.
Analyzing a case
1) Identify the court(s)
2) Identify the Parties
3) identify the Issue(s)
4) Reasoning
5) Holding
6) Disposition
Citation
XXX QQ ###
X: Volume
Q: Reporter
#: Page
Issues of Fact
Determined in Trial court by the jury. Not argued in appeal.
Issues of law
Determined by the judge. Argued in appeal.
Reasoning
How the judge arrives at their conclusion
-Usually involves precedent
-Might establish a standard/test/criterion for future use
Holding
The answer to the legal question at play. This is a complete sentence.
Fifth Ammendment
1) Protection against self incrimination
2) Right to a Jury Trial in criminal cases
3) Right to due process
4) Eminent Domain
5) Right to a fair trial
