Legal Environment Flashcards
sources that establish the law
Primary sources of law
are books and articles that summarize and clarify the primary sources of law
Secondary sources of law
Law that is based on the U.S. Constitution and the constitutions of the various states
Constitutional Law
the supreme law of the land
Article VI of the U.S. Constitution
the Constitution
The body of law enacted by legislative bodies
Statutory Law
A law passed by a local governing unit, such as a city or a county
ordinances
passed by Congress or by state legislatures
Statutory Law
applies only within the state’s borders
state statute
applies to all states
federal statute
A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting
uniform laws
One of the most important uniform acts
The Uniform Commercial Code
facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions
The Uniform Commercial Code
consists of the rules, orders, and decisions of administrative agencies
Administrative Law
A federal or state government agency created by the legislature to perform a specific function
administrative agency
An administrative agency within the executive branch of government
executive agencies
An administrative agency that is not considered part of the government’s executive branch and is not subject to the authority of the president
independent regulatory agencies
such as the Federal Trade Commission, the Securities and Exchange Commission, and the Federal Communications Commission
independent regulatory agencies
Judge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies
Case Law and Common Law Doctrines
The rules of law announced in court decisions
case law
Law as expressed in the U.S. Constitution or state constitutions
Constitutional Law
Statutes (including uniform laws) and ordinances enacted by federal, state, and local legislatures
Statutes (including uniform laws) and ordinances enacted by federal, state, and local legislatures
The rules, orders, and decisions of federal, state, and local administrative agencies
Administrative Law
The relief given to an innocent party to enforce a right or compensate for the violation of a right
remedies
A court in which the only remedies that can be granted are things of value, such as money damages
courts of law
A court that decides controversies and administers justice according to the rules, principles, and precedents of equity
courts of equity
A remedy allowed by courts in situations where remedies at law are not appropriate
remedies in equity
involves ordering a party to perform an agreement as promised
Specific performance
an order to a party to cease engaging in a specific activity or to undo some wrong or injury
injunction
cancellation of a contractual obligation
Rescission
legally binding agreement
contract
fails to fulfill an agreement
breaches
an amount given to a party whose legal interests have been injured
monetary damages
General propositions or principles of law that have to do with fairness (equity)
equitable maxims
Reasons that a defendant offers in an action or suit as to why the plaintiff should not obtain what he or she is seeking
defense
One against whom a lawsuit is brought, or the accused person in a criminal proceeding
defendant
A party that initiates a lawsuit
plaintiff
In equity practice, a party that initiates a lawsuit
petitioner
In equity practice, the party who answers a complaint or other proceeding
respondent
A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced
statutes of limitations
A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts
precedent
A common law doctrine under which judges are obligated to follow the precedents established in prior decisions within their jurisdictions
stare decisis
Latin phrase meaning “to stand on decided cases.”
stare decisis
judges are obligated to follow the precedents established within their jurisdictions
Under the doctrine of stare decisis
refers to a geographic area in which a court or courts have the power to apply the law
jurisdiction
Any source of law that a court must follow when deciding a case
binding authority
include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction
Binding authorities
courts must decide cases for which no precedents exist
cases of first impression
Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision
persuasive authorities
(1) The process of evaluating how various laws apply to a given situation. (2) The process by which a judge harmonizes his or her opinion with the judicial decisions in previous cases
legal reasoning
IRAC Method
- Issue
- Rule
- Application
- Conclusion
What are the key facts and issues?
IRAC Method
Issue
What rule of law applies to the case?
IRAC Method
Rule
How does the rule of law apply to the particular facts and circumstances of this case?
IRAC Method
Application
What conclusion should be drawn?
IRAC Method
Conclusion
generally summarize the common law rules followed by most states
Restatements of the Law
Law that defines, describes, regulates, and creates legal rights and obligations
Substantive law
Law that establishes the methods of enforcing the rights established by substantive law
Procedural law
The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters
Civil law
The branch of law that defines and punishes wrongful actions committed against the public
Criminal law
An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet
cyberlaw
arranges all existing federal laws by broad subject
United States Code (U.S.C.)
The party who takes an appeal from one court to another
appellant
The party against whom an appeal is taken—that is, the party who opposes setting aside or reversing the judgment
appellee
A statement by a court expressing the reasons for its decision in a case
opinions
A court opinion that represents the views of the majority (more than half) of the judges or justices deciding the case
majority opinion
A court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority’s opinion
concurring opinion
A court opinion that presents the views of one or more judges or justices who disagree with the majority’s decision
dissenting opinion
A court opinion that is joined by the largest number of the judges or justices hearing the case, but fewer than half of the total number
plurality opinion
By the whole court; a court opinion written by the court as a whole instead of being authored by a judge or justice
per curiam opinion
A system of government in which the states form a union and the sovereign power is divided between a central government and the member states
federal form of government
The quality of having independent authority over a geographic area
sovereignty
Powers possessed by states as part of their inherent sovereignty
police powers
A clause in Article IV, Section 2, of the U.S. Constitution that requires states not to discriminate against one another’s citizens
privileges and immunities clause
A clause in Article IV, Section 1, of the U.S. Constitution that provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.”
full faith and credit clause
The system by which each of the three branches of the U.S. national government (executive, legislative, and judicial) exercises checks on the powers of the other branches
checks and balances
Legislative branch
The Separation of Powers
Congress
Executive branch
The Separation of Powers
The President
has the power to hold actions of the other two branches unconstitutional
The Separation of Powers
Judicial Branch
The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce
commerce clause
The provision in Article VI of the U.S. Constitution that provides that the Constitution, laws, and treaties of the United States are “the supreme Law of the Land.”
supremacy clause
A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws
preemption
The first ten amendments to the U.S. Constitution
Bill of Rights
Guarantees the freedoms of religion, speech, and the press and the rights to assemble peaceably and to petition the government.
First Amendment
States that the right of the people to keep and bear arms shall not be infringed
Second Amendment
Prohibits, in peacetime, the lodging of soldiers in any house without the owner’s consent
Third Amendment
Prohibits unreasonable searches and seizures of persons or property
Fourth Amendment
Guarantees the rights to indictment (formal accusation) by a grand jury, to due process of law, and to fair payment when private property is taken for public use
Fifth Amendment
Guarantees the accused in a criminal case the right to a speedy and public trial by an impartial jury and with counsel
Sixth Amendment
Guarantees the right to a trial by jury in a civil case involving at least twenty dollars
Seventh Amendment
Prohibits excessive bail and fines, as well as cruel and unusual punishment
Eighth Amendment
Establishes that the people have rights in addition to those specified in the Constitution
Ninth Amendment
Establishes that those powers neither delegated to the federal government nor denied to the states are reserved to the states and to the people
Tenth Amendment
Nonverbal conduct that expresses opinions or thoughts about a subject
Symbolic speech
A test of constitutionality that requires the government to have compelling reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes between people based on a suspect trait
compelling government interest
A computer program that screens incoming data according to rules built into the software and controls access to websites with content not consistent with these rules
filtering software
Word inserted into a website’s key-words field to increase the site’s appearance in search engine results
meta tags
The provision in the First Amendment to the U.S. Constitution that prohibits Congress from establishing a state-sponsored religion, as well as from passing laws that promote religion or show a preference for one religion over another
establishment clause
The provision in the First Amendment to the U.S. Constitution that prohibits Congress from making any law “prohibiting the free exercise” of religion
free exercise clause
An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property
search warrant
Reasonable grounds for believing that a search should be conducted or that a person should be arrested
probable cause
The provisions of the Fifth and Fourteenth Amendments to the U.S. Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law.
due process clause
requires that any government decision to take life, liberty, or property must be made equitably
Procedural Due Process
limits what the government may do in its legislative and executive capacities
Substantive due process
The provision in the Fourteenth Amendment to the U.S. Constitution that guarantees that no state will “deny to any person within its jurisdiction the equal protection of the laws.”
equal protection clause
Provides that individuals have a right to obtain access to information about them collected in government files
Freedom of Information Act (1966)
Protects the privacy of individuals about whom the federal government has information
Privacy Act (1974)
Prohibits the interception of information communicated by electronic means
Electronic Communications Privacy Act (1986)
Requires health-care providers and health-care plans to inform patients of their privacy rights and of how their personal medical information may be used
Health Insurance Portability and Accountability Act (1996)
Prohibits the disclosure of nonpublic personal information about a consumer to an unaffiliated third party unless strict disclosure and opt-out requirements are met
Financial Services Modernization Act (Gramm-Leach-Bliley Act) (1999)
The US Constitution sets forth the government’s _________
limits and powers
Laws enacted by legislative bodies at any level of government make up the body of law generally referred to as ______
statutory law
The Uniform Commercial Code provides a set of rules governing ________
commercial transactions
The classification of law that concerns the rights and duties that exist between persons and between citizens and their government is _____
civil law
In a civil case, the object is to ______
obtain a remedy to compensate the injured party
In a criminal case, the object is to
punish a wrongdoer to deter others from similar actions
a court decision that furnishes an example for deciding subsequent cases involving similar or identical facts or principles
precedent
the geographic area in which a court has the power to apply the law
jurisdiction
The federal government has the power to regulate commercial activities among the states under ________
the commerce clause
gives precedence to federal law over state laws and state constitutions
the supremacy clause
Moral principles and values applied to social behavior.
ethics
a consensus of what constitutes right or wrong behavior in the world of business and the application of moral principles to situations that arise in a business setting
business ethics
prevent, detect, and respond to fraud (including improper payments) in federal programs
Fraud Reduction and Data Analytics Act
The minimum degree of ethical behavior expected of a business firm, which is usually defined as compliance with the law
moral minimum
The idea that investors and others should consider not only corporate profits, but also the corporation’s impact on people and on the planet when assessing the firm
triple bottom line
A reasoning process in which an individual links his or her moral convictions or ethical standards to the particular situation at hand
ethical reasoning
An ethical philosophy rooted in the idea that every person has certain duties to others, including both humans and the planet
Duty-based ethics
An ethical philosophy that focuses on the impacts of a decision on society or on key stakeholders
Outcome-based ethics
The principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, etc.)
principle of rights
A concept developed by the philosopher Immanuel Kant as an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way
categorical imperative
a “good” decision is one that results in the greatest good for the greatest number of people affected by the decision
utilitarianism
A decision-making technique that involves weighing the costs of a given action against the benefits of the action
cost-benefit analysis
The concept that corporations can and should act ethically and be accountable to society for their actions
Corporate social responsibility (CSR)
Groups, other than the company’s shareholders, that are affected by corporate decisions
stakeholders
Name the 4 steps
IDDR approach
- Inquiry
- Discussion
- Decision
- Review
