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MGMT 311 Fall 2024 > Exam 1 > Flashcards

Exam 1 Flashcards

1
Q

What is the law?

A

Law defines what is legally right and wrong
-The law establishes rules that govern society

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2
Q

Sources of American Laws

A

-Constitutions: US and State constitutions
- Statutory Laws: US, State, Local Laws
-Regulations: Created by administrative agencies
-Case Law/Common Law Doctrine: Federal and State case law

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3
Q

Constitutions

A

establish organization, powers, limits of the government

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4
Q

State Constitutions

A

Create state governments, highest form of law within states

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5
Q

Types of statutory laws:

A

-Federal Statutory Law
-State statues
-Local/Municipal

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6
Q

Administrative Law

A

Rules, orders, decisions or decrees issued by administrative agency

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7
Q

Types of administrative bodies:

A

-Executive Agencies-Answer to president/governor
-Regulatory Agencies-Answer to generally to a board or commissioner appointed for a fixed term
-SEC and FCC

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8
Q

Common law:

A

Common law is based upon old English law

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9
Q

Legal Terms

A

-Plaintiff/Petitioner: Bring the action
-Defendant/Respondent-Party being sued
-Laches: Defenses raised by respondent (SOL)
-Stare decisis: Doctrine of precedent, under which a court must follow earlier decisions when the same facts/law appear
-Legal Precedent: Is a court decision that is considered controlling on facts or legal issues
-Jurisdiction: The power to make egal decisions and judgements

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10
Q

Concept of Stare Decisis

A

General principle: Judges must follow precedents

Two main aspects:
-Court should not overturn its precedent absent a really good reason to do so
-Decisions by higher courts are binding

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11
Q

Legal Reasoning – IRAC

A

-Issue: What is the case or controversy about?
-Rule: What rule of law will apply?
-Application: Applying the rule of law to facts and circumstances giving rise to the controversy
-Conclusion: Decision

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12
Q

Legal Reasoning: Things to consider

A

-Generally, decisions are not black and white
(Both sides are usually somewhat convincing)
-Laws/Statutes can be flexibly interpreted
-Personal beliefs/moral philosophy can play a role, judges are still human and have biases

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13
Q

Classifications of Law

A

Substantive and Procedural

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14
Q

Substantive:

A

Defines and creates legal rights and obligations

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15
Q

Procedural:

A

Methods of enforcing the rights established

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16
Q

Federal VS Private Laws

A

-Public addresses the relationship between person and government
-Private address relationships between private entities

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17
Q

Types of decisions:

A

-Unanimous Decision
-Majority Opinion
-Concurring Opinion
-Dissenting Opinion
-Plurality Opinion

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18
Q

Unanimous Decision:

A

All justices agree on law and facts presented

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19
Q

Majority Opinion:

A

Outlines the rational of the judges that decided the case

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20
Q

Concurring Opinion:

A

Outlines the rational of the judges agreeing on the ultimate outcome but not the majority’s legal reasoning

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21
Q

Dissenting Opinion:

A

Outlines the rational on why the justices disagree with the majority’s opinion

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22
Q

Plurality Opinion:

A

Unable to get a majority

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23
Q

Article 4 section 2:

A

Citizens in each state are entitled to enjoy the privileges as immunities of all the states
-Can NOT discriminate (Property, employment, court system)

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24
Q

Checks and Balances system

A

-Legislature enacts laws, but require executive approval

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24
Q

Article 4 section 1:

A

Every state will respect every other states public acts, records and judicial proceedings (Civil Only)

Importance of this clause: It allows people and business to effectively and uniformly conduct business across state lines

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25
Q

Separation of Powers

Constitution provided for 3 branches of government

A

-Executive – Presidents
- Legislature – Congress
-Judicial – Court System

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26
Q

Commerce Clause

A

It was enacted to precent the states from enacting laws that would interfere with trade and commerce among the states
-Article 1 section 8
- Congress has the authority to “regulate commerce with foreign nations, and among the states”

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26
Q

US v. Alvarez

A

Perfect example of checks and balances system

-mainly limiting prohibition to situations involving fraud

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27
Q

Wickard V. Filburn 1942

A

-Case involved wheat production on individual wheat farm
-Individual farm affects interstate commerce no matter how small the farm

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28
Q

Commerce Clause Today

A

-Feds have jurisdiction over every commercial enterprise

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29
Q

Supremacy Clause

A

Federal law Is the supreme law of the land, state law cannot supersede fed law.

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30
Q

Tax and Spending

A

Congress has the explicit “power to lay and collect taxes and duties… etc.”

-Article 1 section 8
-Taxes must be uniform
-If reasonable – permissible under commerce clause

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31
Q

Businesses and Bill of Rights

A

The bill of Rights was adopted to protect individuals against the government
-Corporations are considered legal entities or legal persons

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32
Q

14th Amendment

A

“No state shall deprive any person of life, liberty, or property without due process of law.”

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33
Q

Freedom of Speech

A

Most essential component to having a democratic government

-Applies not only to spoken words

34
Q

Corporate and Commercial Speech

A

-Corporate free speech is protected
-Corporations are free to make political contributions just like individuals
- Not absolute however still subject to reasonable restrictions

35
Q

Freedom of Religion

A

Government may not establish any religion nor prohibit the free exercise thereof

-No official religion/state sponsored religion – Better know “establishment clause”*
-Individuals may practice any religion of their choosing**

36
Q

Burwell v. Hobby Lobby stores (2014)

A

Corporations are citizens and entitled to 1st amendment protections not least restrictive measure

37
Q

4th Amendment

A

Protects the rights of the people to be secure in their persons, houses, papers, and effects”
-Better known as search and seizure
-Before searching or seizing property, law enforcement must have a search warrant
-Search warrant is legal authority to search or seize

38
Q

Due Process

A

The fifth and fourteenth amendment provides for two types of due process prior to a taking (life, liberty, or property)

39
Q

5th Amendment

A

No person shall be compelled in any criminal case to be a witness against himself

-Cannot be forced to give testimony (answer questions) that might be subject to a criminal proceeding

  • Miranda v. Arizona (1966) Burglary suspected questioned and confessed not advised of his rights

-Applies to Federal and State cases

40
Q

Equal Protection

A

The 14th amendment forbids states from denying any person equal protection under the law.
- Equal protection (like substantive due process) relates to substance of the law or action

41
Q

Privacy

A

There is no expressed constitutional right of privacy

42
Q

Commerce Clause

A

It was enacted to precent the states from enacting laws that would interfere with trade and commerce among the states
-Article 1 section 8

43
Q

Wickard V. Filburn 1942

A

-Case involved wheat production on individual wheat farm
-Individual farm affects interstate commerce no matter how small the farm

44
Q

Heart of Atlanta Motel V. US 1964

A

-Hotel owner sued for challenging the Civil Rights act of 1964

45
Q

Supremacy Clause

A

Federal law Is the supreme law of the land, state law cannot supersede fed law.

46
Q

Tax and Spending

A

Congress has the explicit “power to lay and collect taxes and duties… etc.”
-Article 1 section 8

47
Q

Businesses and Bill of Rights

A

The bill of Rights was adopted to protect individuals against the government
-Corporations are considered legal entities or legal persons

48
Q

Due Process

A

The fifth and fourteenth amendment provides for two types of due process prior to a taking (life, liberty, or property)

49
Q

Equal Protection

A

The 14th amendment forbids states from denying any person equal protection under the law.

50
Q

Judiciary’s Role

A

System of American Government would be meaningless without the judicial system.
-Courts interpret laws and apply to certain situations

51
Q

Judicial Requirements

A

Jurisdiction means “law” and speak”
- Before a court can hear a case, it must have jurisdiction over: The defendant, the property in question, subject matter of the dispute.

52
Q

Jurisdiction

A

“In personam” which is personal jurisdiction, where you have jurisdiction over the individual
- Courts have personal jurisdiction of people and businesses within their geographical limits

53
Q

Long Arm Statutes and Corporate Contact

A

LAS – Gives states personal jurisdiction of out of state residents based upon activities that took place in state
- “Reaching out and dragging defendant into another state”

53
Q

In rem jurisdiction

A

Used in disputes where property is the subject matter of the dispute
-The property must be within the court’s jurisdiction

54
Q

Subject matter jurisdiction

A

SMJ – Is a limitation on the types of cases a court can hear
There are two types of court: General jurisdiction – Unlimited
- Limited jurisdiction

55
Q

Exclusive v. Concurrent Jurisdiction

A

Concurrent Jurisdiction – where both state and federal courts have the power or ability to hear cases
- Examples include diversity of citizenship cases, both courts can hear the matter
Exclusive jurisdiction is when only state of federal courts can try the case

56
Q

Standing

A

Before a suit can be filed the plaintiff must have standing to sue

57
Q

Standing can be broken down into three elements

A
  • Harm: Plaintiff must have suffered an invasion of legal interest
  • Causation: There must be a connection between the action complained and the injury
  • Remedy: It must be likely that a favorable decision will remedy the injury suffered
58
Q

State Court System

A

Every state court system is slightly different
Generally state court systems are made of:
- Local courts- municipal courts, town, or city
- State or county courts: can limited or general jurisdiction
- Highest courts (supreme court in the state) – not always the case, EX Texas and New York

59
Q

Federal Court System

A

A federal system is a 3-tiered system
- US district courts
- Court of appeals 12 circuits- Texas is part of the 5th circuit (13 courts)
- Supreme Court- 9 justices that serve for life
- Federal court justices are appointed by the President but confirmed by congress (federal judges may be impeached due to illegal or unethical behavior, but is not likely)

60
Q

Cyberspace and international jurisdictions

A

The internet’s ability to circumvent traditional political and geographic boundaries has caused issues with regards to personal jurisdiction

61
Q

Alternative dispute resolution HEAVILY TESTED

A

Litigation (suing in court) is expensive and time consuming
ADR offers a quicker, more private, and cheaper alternative to litigation for resolving business disputes
- ADR services are provided by government and private organizations
- 90% of civil cases are settled using some form of ADR

Negotiation: Informal resolution process where the parties discuss possible settlement

Mediation: A neutral 3rd party attempts to settle the dispute, a good mediator shows strengths and weaknesses in both parties, but can only make suggestions and recommendations

Arbitration: The more formal ADR alternative (mini or expediated trial)
- Can be sole arbitrator or a panel
- Can be legally bidding or not
- Formal rules of evidence are not as applicable

62
Q

Arbitration

A
  • Arbitrator acted in “bad faith” substantially prejudice one party
  • Award violates an established public policy
  • Arbitrator exceeded his or her authority
63
Q

Issue of arbitrability:

A

Courts decide whether an arbitration clause is applicable or not to the case or controversy at issue

64
Q

Arbitration Clauses:

A

just about any commercial matter may be submitted to arbitration through a clause in the contract between the parties

65
Q

Arbitration Statutes:

A

Some states have statutes mandating arbitration in certain situations

66
Q

Discovery

A

Discovery is a way or process for either party to obtain information from the other party prior to the trial
- This also includes access to witnesses, documents, records, and medical records

67
Q

Forms of Discovery

A

Depositions: a sworn testimony given by a party or witness recorded by a court representative
- Both sides attorneys ask questions under oath and record

Interrogatories- are written questions delivered to a witness or party- answers given under oath
- Attorneys will help prepare written responses
- Very specific purpose- example contract details

68
Q

Electronic discovery

A
  • electronic or e-evidence consists of electronically stored records, emails, voicemails. Tweets. Blogs, social media posts, spreadsheets
69
Q

Procedural Rules

A
  • Procedural rules provide the framework and outline the parties’ obligations at each stage of the proceeding
  • PR are very complex and can vary greatly between jurisdictions
70
Q

Stages of Litigation

A

There are generally three stages to litigation (Pretrial, trial, post-trial)

71
Q

Types of attorney fees

A

Attorneys should always do a retainer agreement
- Outline the services to be provided and fee arrangement

Fixed fees – Transactional; flat fee
- Drafting a will or business operating agreement

Hourly Fee- $ per hour
- Usually involves a retainer fee
- Per hour rate varies

Contingency fee
- Attorney only gets paid if the plaintiff is successful
- Only available in certain circumstances; most common personal injury

72
Q

Pretrial Motions

A

Motion- is procedural request submitted to the court by an attorney
- Opposing party needs to be provided notice of motion
- Pretrial motions

73
Q

Rules of evidence

A

determines what evidence is presented in the case

74
Q

Excited utterance

A

a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event.
-Exception to hearsay rule

75
Q

Verdict

A

is the judge or jury’s decision
- After the verdict, the trial is over
- Juries also make an award (damages or $$$)

76
Q

Motion for new trial

A

requires an error of law of misunderstanding of the evidence by the jury

77
Q

Motion for Judgement N.O.V.

A
  • A second motion for a judgement as a matter of law
  • If successful, the jury verdict will be set aside, and judgement entered in favor of the opposing party
78
Q

Appeals

A

Either party may appeal not only a jury verdict but also any judges ruling on any motion
- Appeals are costly and generally not very successful
- Appeals require some legal error

79
Q
  1. Barney files a suit against Courtney who fails to respond. Consequently, Courtney
A

d. is subject to a judgment of default

80
Q
  1. Gini and Huruto present their case to an Idaho state court for resolution. The court defers to a different Idaho court’s finding of fact in the case and focuses on the application and interpretation of the law to dispute. The court currently deciding Gini and Haruo’s dispute is
A

A. An Appellate court

81
Q
  1. Laws enacted by legislative bodies at any level of government make up the body of law is generally referred to as
A

A.) Statutory law

82
Q
  1. In a suit to compel arbitrations a court will order a dispute to be arbitrated if
A

a.) both parties consented to it

MGMT 311 Fall 2024 (6 decks)

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