Lecture 1-3 Flashcards
What are the areas of law that affect Business Decision Making?
-Contracts
-Intellectual property
-Torts
-Product Liability
-Sales
-internet law, social media, and privacy
-Environmental law and sustainability
What are the American sources of law?
Primary secondary
What are the primary sources of law?
-Constitutional law
(U.S constitution/constitutions of various states)
-Statutory law
laws passed by legislative bodies ex: Congress, state legislatures, or federal trade commission. ALSO includes Local Ordinances.
-Regulations created by administrative agencies ex: fed trade commission
-Case law & common law doctrine
What are the secondary sources of law?
Books/Articles that summarize and clarify the primary sources of law.
What is NCCUSL?
National Conference of
Commissioners on Uniform State Laws
What are the exceptions to the warrant requirement?
- Consent
- Stop and frisk searches (reasonable suspicion)
- Border searches
- Hot Pursuit: Police can enter a premises w/o a warrant if they suspect a crime has been committed AND delay endangers lives AND leads to the escape of the perpetrator
- Airport or courthouses searches
What is Standing/Case or controversy?
Legal doctrine that shows personal interest has been invaded
What constitutes a reasonable search?
- Public Necessity
- Efficacy of the search- Is the procedure averting harm w/o going too far
- Degree of Intrusion- Evaluation of intrusion to the citizens privacy and potential effects to them.
What is a Statuary law
Laws enacted by legislative bodies, a statute is in federal code of laws.
Includes local Ordinances.
What is Local ordiances
Regulations passed by county governing units to deal w/ matters not covered by federal/state law. Typically about land use, safety codes, local community.
What is an executive agency?
A federal agency under the executive office of the president
What is a federal form of gov
The national government and the states SHARE sovereign power
What is sovereignty?
power to govern themsleves
State regulatory law/Police powers is
Enforcement of laws, regulate private activity, promote order, safety, etc.
What is the privileges and immunities clause ?
The constitution prevents a state from imposing unreasonable burdens on citizens of another state
full faith and credit clause
ensures rights under deeds, wills, contracts, and similar
instruments in one state will be honored by other states.
also ensures that any judicial decision to property rights will be enforced in all states.
checks and balances
allows each branch to limit the actions of the other two, preventing any one branch from exercising too much power.
commerce clause
Congress can regulate interstate commerce
What are the 3 different types of state preemption
-Express preemption - the state law is drafted to stop counties or cities from
doing something.
-Implied preemption - this occurs when 1 of 2 things happen which show a
conflict between the state and local law, e.g.
-Field preemption: when there is clear legislative intent that the “field” is
preempted by state law. The “field” is usually defined as when there is an
extensive scope of state regulation which reflects a state intent to preempt
all local regulations that are in a particular area.
Express Preemption
the state law is drafted to stop counties or cities from
doing something
Implied Preemption
this occurs when 1 of 2 things happen which show a
conflict between the state and local law, e.g.
Field Preemption
when there is clear legislative intent that the “field” is
preempted by state law. The “field” is usually defined: an
extensive scope of state regulation which reflecting a states intent to preempt all local regulations that are in a particular area.
Probate courts
state courts that handle the disposition of a person’s
assets and obligations after death, including issues relating to the custody and guardianship of children
Bankruptcy
courts
handle only bankruptcy proceedings, which are
governed by federal bankruptcy law
What are the 2 types of court
-trial courts
- appellate courts
How do courts get money
Rely on other branches of government to send in tax dollars
Appellate Courts
dont take new evidence/witnesses.
appellate courts rely upon
transcripts from the trial court.
Trial Courts
Conduct initial proceedings.
Once the trial begins:
1. The Judge will determine what evidence is admissible
2. If the court is hearing the case w/o a jury, the judge will decide disputed facts.
3. If a jury is deciding the case, the court will instruct the jury to decide the disputed
facts
4. The judge will determine what the appropriate law is (“questions of law”), if a
jury is deciding the case, the court will instruct the jury on the law.
5. Once the “facts” are determined, the law will be applied to the facts to reach a
verdict.
6. In criminal cases, the judge will impose punishment, except in death penalty cases
(not applicable in Washington).
State trial courts are most often called “Superior Court” (this is case in Washington).
Federal trial courts are called “Federal District Courts” (or simply “District Courts”)
How are Appellate courts duties limited?
Deciding whether or not the evidence produced in the
trial court was sufficient to have allowed the result, and determining whether or not the trial judge/lawyers, made any error of law serious enough to require that the result of the trial should be changed.
They may reverse a trial court, affirm it, or remand (send back w/ instructions to do something different in the future).
What is the only court that can make common law by deciding cases and publishing them
Appellate courts
What are the 3 types of common law
- Civil Suit
People asking for $ (DAMAGES)
Burden of proof = Preponderance of the evidence; more likely
than not. - Criminal
Prosecuting somebody for a crime; this type of case is initiated by some level of government. Burden of proof: Beyond a reasonable doubt. Can be jailed. - Actions in equity
This type of case does NOT involve the right to a jury trial.
Equity Asking the court, in a civil case, to order the defendant to do something or not do something.
Asking a court to annul a contract (erase it, and return the parties to their original position,E.g. Divorce proceedings. Often referred to as “rescission”.
Powers of the Judicial Branch
Courts’ power to declare an act of Congress, State or local government unconstitutional, and thus void, if it violates the Federal Constitution.
A person is guilty of burglary in the second degree if
- with intent to commit a theft of property therein,
- he or she enters or remains
- unlawfully in
- a building.
Statutory Constructions
the Court is interpreting what the statute says (Ex: Long arm man: what does enter true mean=Statutory constructions
Precedent
a specific decision of an appellate court that gives direction and guidance – and
is binding upon lower courts – on similar questions of law.
Stare decisis (to stand by things decided)
DOCTRINE that says once an important legal decision is created by courts, it should not be overruled. Unless good reason (Ex: Bowers v. Hardwick (Same sex marriage))
Legislative acquiescence
Aware of what the courts of appeals did and agree
Who chooses the # of supreme court judges
Congress
DO judicial philosophies (How judges look at the law) play a role in judges’ decisions?
yes
Most federal cases =
Lifetime in jail
What are the 2 ways to become a judge in Washington?
1.Vacancy (Death, retirement) judge the Governor, who appoints takes the space. The next year they will have to run in the election.
2. Election
The Federal judicial branch hears and decides Federal Cases, e.g. cases involving
(1) the U.S. Constitution,
or (2) Federal laws, rules, agencies;
but (3) NOT legal controversies
involving only State laws – these are governed by individual state constitutions and decided by State courts.
jurisdiction
refers to the power of the court to do what you
want done.
A court only has the power to decide a legal dispute if the court has _________ over the
subject matter and the parties. This is a key concept.
jurisdiction
