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Business Law Exam
Chapter 1-5
68
Law
Undergraduate 4
10/01/2012

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Term
What are the 4 types of laws?
Definition
Constitution
Statutes
Ordinances
Common Law
Term
Types of law: Constitutions
Definition
Both state and federal
Establishes structure
(Separation of branches of government and separation of responsibilities)
*Women voting example*
Term
Types of Laws: Statutes
Definition
Written Law
Passed by Legislature (US Congress, State Legislature)
Has to be state or higher to be a statute etiquette
Term
Types of Laws: Ordinance
Definition
Written Law
Passed by legislative body
Lower than a state (county, city, water district)
Term
Types of Law: Common Law
Definition
Not passed by anyone
law based on decisions in other similar cases
Term
In regards to types of laws, which law wins?
Definition
1. Federal Supremacy (if you have a conflict between the feds and the state, the feds win. Feds and city, feds win)

2. Constitution (Constitutions are always the highest. If you pass a law (women can't vote in city of Maryville), the constitution wins and can overturn that state law.

3. Statute

4. Ordinances

5. Common Law
Term
Marbury vs. Madison
Definition
Courts have the right to declare statutes unconstitutional

If there is a conflict, the constitution wins
Term
What are the 2 classifications for laws?
Definition
Criminal and Civil
Term
What is Criminal Law?
Definition
Government prosecutres (not by the injured party)

Punish for criminal activity (existing)

Purpose: Punish
Plaintiff: Government (of some type)
Burden of Proof: Beyond a reasonable doubt
Jury Vote: 12/12
Term
What is Civil Law?
Definition
Allows victims to recover money for the damages they suffered

Brought by the victim not by the state

Purpose: Money
Plaintiff: The injured
Burden of Proof: Preponderance of the evidence 51%
Jury Vote: 9/12
Term
Statutory Interpretation
Definition
Example of State v. John Deerslayer

"Not at Night"
(search warrants can't be executed at night)

6:43 when the sun went down
6:54 when they executed the search warrant
Defenition: "Absence of natural light"

Had to manipulate the definition to their advantage
Term
Plain Meaning
Definition
Literal meaning
Generally accepted meaning
Term
Legislative Intent/ Purpose

Why was it adopted?
Definition
Construe the words so it fits an explanation
Term
What are the 2 kinds of state courts?
Definition
Trial Court and Appellate Court
Term
Trial Court
Definition
First level of litigation (where we commence lawsuit)

Determines the FACTS

They decide what happened
Term
Appellate Court
Definition
Reviews trial court decisions

Look at what happened at trial court (typed transcript of everything said)

Decide questions of LAW rather than FACT
Term
Writ of Certiorari (by request)
Definition
MO supreme court to US supreme court by REQUEST
Term
The US Supreme Court
Definition
Original Jurisdiction
Must be in supreme court
File lawsuit here, and whatever they say goes. NO appeals.

Who does this happen to?
1. Lawsuit between 2 states
2. Lawsuit between U.S. and state
3. Involve ambassadors, minister, etc.
Term
Diversity Jurisdiction (Federal)
Definition
Plaintiff and defendant are from different states AND Claim exceeds $75,000
Term
How is venue determined in a case?
Definition
Choice of state:

DEFENDANT'S Residence
Where the incident occured
Where land located (ownership)
Term
Steps of Civil Procedure
Definition
1. Petition/ Complaint
2. Answer
3. Discovery
4. The Trial(motion for new trial, appeal)
5. Enforcing a Judgement
Term
Civil Procedure: Petition/ Complaint
Definition
Always filed by injured party (plaintiff)

Plaintiff's view: Just tells the facts from the plaintiff's perspective

Reason for loss/ fault has to be stated in the petition
Term
Civil Procedure: Answer
Definition
In response to the petition

Defendant's view of the facts

Areas of agreement and dispute identified
Term
Civil Procedure: Discovery
Definition
A process by which we find out all the information BEFORE a trial has to take place

Interrogatories (written questions asked of the OTHER PARTY; obligated to tell you everything and can go to jail if they don't; part of the reason we do this is to get settlements)

Depositions (Oral questions, bring room, put under oath, with a court reporters and you answer questions; asked of the OTHER PARTY OR WITNESS)
Term
Civil Procedure: The Trial
Definition
If the problem isn't resolved in discovery, then it goes to trial

jury/non-jury (plaintiff decides if they want one)

Evidence received

Argument heard

Verdict (decision)
--Jury or judge comes back with a decision; in order to win on the civil side, you need 9/12 jurors to agree
Term
Civil Procedure: The Trial: Motion for New Trial
Definition
Filed by the party that thinks the judge did something wrong (therefore going to appeal)

filed prior to appeal

Gives the judge a chance to correct the mistakes that happened at trial
--if judge says they're right, the case gets re-tried with new jurors; 99 times out of 100, the judge will tell them to go to the court of appeals
Term
Civil Procedure: The Trial: Appeal
Definition
A review of a trial court actions

Did they apply the law correctly

This assumes that it has already been to court, judge gives decision, plaintiff wins, and defendant has to give the money- force defendent to pay plaintiff
Term
Enforcing a Judgement
Definition
Writ of Execution

Garnishment
Term
Writ of Execution
Definition
Take property that is in the possession of the defendant

Sell it until the plaintiff has his money
Term
Garnishment
Definition
Property of the defendant in possession of a third party (paycheck)

Can only take 25% of paycheck

Don't have to tell the defendant in advance (bank account: no limit)

Landlord example (take down payment from the next renters to give to defendant)
Term
What are the 3 separation of powers?
Definition
Legislative
Judicial
Executive
Term
Business and the constitution
Definition
Separation of Powers
Checks and balances
Federal Supremacy
Federal Regulatory Power
Spending power
Term
Federal Supremacy
Definition
General rule that if you have a conflict between a statute passed by a state and the Federal Government, the Feds win
Term
Federal Regulatory Power
Definition
Works on things like the Powerball

Works under the Commerce Clause
---THe fed Gov has the right to regulate (inspect) anything that is in interstate commerce (anything that goes across state lines)

IRS (internal revenue service)
---Have the power to tax you
---Revenue raising proposition (designed to raise revenue)
Term
Examples of Spending Power
Definition
Click it or Ticket

Budweiser giving money to state of Missouri to not pass open container law
Term
Business Ethics
Definition
Debate over the large Corporation
--Microsoft
--Have significant advantages

Corporate dishonesty

Is a large corporation helpful?
--It can be

Allows for integration of assets

Accountable only after the fact- PROBLEM

Stakeholder Theory
-- How do you make a decision based on a corporation: there are 2 theories
Term
Stakeholder Theory
Definition
Consider Multiple Inputs
--How this decision affects a lot of people;
---the interest of the stakeholders; $$$$$$$$
---The interst of the others who deal with the corporation

Profit Maximization Theory
--Shareholder Theory
--Make as much money as you can
--Seek maximum long-term profits
Term
The Law as Enforcer
Definition
Ability to control irresponsible corporate behavior has limits
Term
Classification of Crimes
Definition
Based on what punishment was available (what COULD the judge/jury have done) NOT what punishment was received

1. Felony- Can send person to PRISON

2. Misdemeanor- Possible jail but not prison time

3. Infraction- Only punishment is a fine
Term
Criminal Law Basics
Definition
Plaintiff in Criminal Cases:
--State, City, Etc.
--NOT A PERSON

Defendant:
--Always the bad guy

Burden of proof:
--Beyond a reasonable doubt (not guilty until proven guilty)
Term
Elements of a Crime
Definition
Criminal Act
Criminal Intent

HAVE TO HAVE BOTH IN ORDER TO BE CRIMINAL
Term
Criminal Intent Required
Definition
KNOWINGLY committed criminal act

Murder, stealing, etc.

Reasonable person's test

Acted RECKLESSLY (not careful)
--Classified as Manslaughter

-No intent crimes
--speeding
Term
Criminal Act
Definition
Look and see what the statute says to see if it is a justifiable crime
Term
Criminal Intent
Definition
You have to have the intent required by the law
--If charged with murder, you have to prove that you had that level of intent in the murder statute

Speeding: you don't have to have intent

Criminal Intent is Required- KNOWINGLY committed criminal act (murder, stealing, etc.)
--Acted recklessly (not knowing)
----reading paper while driving; texting while driving, etc.

No intent crimes
Term
Reasonable Person Test
Definition
Look at the act that was done

Primary way to figur out the INTENT
--If ORDINARY PERSON had completed the same ACT, would the person have INTENDED to commit a crime?
----If yes, then you have criminal intent

There are 3 exeptions where you don't use reasonable person's test:

1. Juvenile
2. Mental Incapacity
3. Intoxication
Term
What are the 3 exeptions in which you do not use the reasonable person's test?
Definition
1. Juvenile
2. Mental Incapacity
3. Intoxication
Term
Juvenile Exeption to Reasonable person's test
Definition
Based SOLEY on age

Being able to prove that you are a juvenile in that state
-- In MO: under 17
--Based on where you did the act

As long as you remain a juvenile, you cannot form intent and CANNOT be convicted of a crime
----NO intent= CANNOT be guilty
-------EXCEPTION: Judge has to classify juvenile as ADULT

Age at the time of the incident
Term
Mental Incapacity (insanity) exemption to the Reasonable Person's Test
Definition
Looking at the mind of the defendant

No longer looking at the REASONABLE person

Are there people that have mental problems that are still sane? YES

Don't use reasonable person's test, use the M'Naghten test
Term
M'Naghten Test
Definition
Is NOT to determine whether the person has a mental problem

it is to determine whether the mental problem is so bad that they can't form intent
--"The defendant did not understand the consequences of act"

If mental incapacitated to the point of M'Naghten= NOT GUILTY

Example: Twinkie Defense:
--Temporary Insanity
--Gets a medical doctor to testify that due to the amt. of sugar he consumed that day, the synapses in his brain couldn't close properly, so even though he killed all those people, he didn't understand the consequences of his actions, and therefore was dropped of all charges...
Term
Intoxication (drugs/alcohol)- Exeption to the reasonable person's test
Definition
Still use the M'Naghten test

Result of intoxication did not understand nature of the act

The problem with this defense is self-induced intoxication is NOT A DEFENSE

Ex. If I go home and have 12 beers, and shoot my wife, it doesn't matter; if my punch was spiked with LSD= non-self induced intoxication, it matters and CAN be used as a defense
Term
Intoxication Intent
Definition
Only 3 options:

1. Not meet M'Naghten:
Help? NO
Have to switch to reasonable person=guilty

2. Meet M'Naghten, but self-induced
Help? NO
Have to switch to reasonable person=Guilty

3. Meet M'Naghten-not self induced
NO INTENT=NOT GUILTY
Term
Criminal Procedure: Felony
Definition
-Initial Charge
-Warrant
-Arrest
-Bond Posted
-Arraignment
-Preliminary Hearing
-Felony Information
-Guilty/Not Guilty/ NGRI
-Discovery
-Jury
-Verdict
-Motion for New Trial
-Appeal
-Misdemeanor/Infraction (as opposed to a FELONY)--start with "information" NOT preliminary hearing and before
Term
Fourth Amendment
Definition
You have the right not to be protected from ALL searches and seizures, but you have the right to be protected from searches and seizures that are UNREASONABLE

Starting point from search and seizure is a search warrant
--Comes from an 'affidavit'
--Probable cause to believe
--Search Warrant
Term
Search Warrants
Definition
Comes from an 'affidavit'
--A written statement
----"I was in Johns house earlier and he sold me some cocaine"

Probable cause to believe
--If the judge has probable cause to believe evidence is there, then he is going to let you search

Search warrants are done BEFORE the search, not after
Term
Search warrant Issues
Definition
Where can you look?
What can you Saize? (and use against them in a court of law?

Example: John Defendant

Search the home of John Defendant because there is PROBABLE CAUSE that he has stolen shotguns in the house (probably cause tells us where we can search; your search is driven by what the probably cause is

You're trying to search the largest area you can for the smallest thing you can (driven by what the affidavit says)

You FIND:
-Cocaine in jacket pocket in bedroom (no; shotgun wouldn't fit in pocket of jacket, so they aren't authorized to look in the pocket)
-Marijuana Plant in hall closet (yes because the closet is big enough for a shotgun to fit through)
-Dead Girlfriend in chest freezer (maybe: would shotgun fit in freezer?)
-NO shotguns found)
Term
Times you don't have to get a search warrant
Definition
Plain View Exception
Conscent Exception
Search Incident to Arrest
Automobile Exception
Term
Plain View Exception
Definition
Cop has a right to be there
Could tell it was illegal
Term
Conscent Exception
Definition
Person under question gives conscent for cop to search
Term
Search Incident to arrest
Definition
Person is under arrest and the officer can pat down the offender for his own protection from weapons or harmful items

Designed to protect officer

Can take things out of pockets that could potentially be of harm to the officer

Reach and control

once the officer is safe the search stops
Term
Automobile Exception
Definition
If you're dealing with a motor vehicle, you don't have to get a search warrant

Probable cause to search--has to follow search warrant rules (can't search for alchohol in a small ashtray b/c it wouldn't fit)
Term
Fourth Amendment Application Examples
Definition
Driving Auto- speeding
There is alcohol on breath- underage- not DWI
Marijuana under seat (clear plastic bag)
Dead boyfriend in trunk

CAN search car b/c she is a minor with alcohol on her breath
Term
What is the chronological proceedings when you get pulled over?
Definition
1. Seize the evidence (4th amendment)
2. Once you have the suspect item out of the car, you're going to ask defendant about it (5th amendment)
3. Once you've done both of those things, the next thing you do is go to trial (6th amendment)
Term
5th Amendment
Definition
Right to remain silent

You do NOT have to incriminate yourself

Rights only need to be read when taking a statement from the defendent

Protection from COMPELLED TESTIMONIAL SELF-SELF INCRIMINATION

NO protection, no 5th amendment rights for things like:
-Fingerprints
- Blood/DNA
-Handwriting
-Voice
-Hair
Term
When is the only time you need your rights read to you?
Definition
If a statement is being taken from the Defendant

In most MIP cases, you don't take statements

If you're being interrogated, they HAVE to ready you your rights

If you aren't mirandized, the only thing that happens is they have to throw away the statement
Term
You have no protection of 5th amendment rights for things like:
Definition
-Finger prints
-Blood/DNA
-Handwriting
-Voice
-Hair

Even if they refuse to give those things, they can still be taken by force

This can be done becuse they aren't asking about the crime or if they did it, it's just evidence
Term
6th Amendment
Definition
Trial rights

Right to confront witnesses
Right to an attorney
Right to a speedy trial
Term
If you are suing someone in civil court, one of the places you can bring your lawsuit is the state in which applies to the defendant? T/F
Definition
True
Term
Search and Seizure falls under the 6th amendment? T/F
Definition
False
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