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Webster's: law. n. “a rule of conduct...” (chosen to be enforced by society)
Black's law dictionary: law. n. “a rule...that must be obeyed by citizens, subject to sanctions or legal consequences.” |
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Traditionally unwritten English custom
Adopted by all states except LA
Today judicial decisions made based upon body of historical case law
Doctrine of precedent requires courts to follow previous judicial decisions (in that jurisdiction) with similar facts (Principle of stare decisis) |
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courts hear a dispute based on set of facts
court makes ruling (decision) on a dispute
this ruling (decision) must be consistent with previous rulings (i.e. previous decisions are BINDING) |
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| Court rulings are based and line up to previous cases |
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| Name all the sources of law |
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United States Constitution (“Supreme law of the land”)
establishes Congress, the Presidency and Court (i.e. 3 branches)
gives to states all powers not given to Federal gov’t
guarantees basic rights to all citizens
State Constitutions
Creates state executive, legislative and judicial systems
Statutes – law passed by federal & state legislative bodies (note, most common law is now statutory)
Common Law -- established by precedent, or earlier cases decided by courts
Administrative Law -- created by agencies (FCC, SEC, FDA, etc.)
Equity– created and used by courts. Means “fairness.” |
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| What are the differences between criminal and civil law? |
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Criminal law - dangerous behavior towards society, government prosecutes accused, guilt is determined, punishment or fine is imposed.
Civil law - regulates rights and duties of parties, victim not government brings suit, guilt not determined, compensation is ordered. |
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| defines the rights of the people |
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| establishes processes for settling disputes. |
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| Sets the duties of government to its citizens. |
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| regulates duties between individuals. |
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| What are the 5 parts of a case or judicial decision? |
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Title and legal citation
Facts
Legal issue to be decided
Analysis / reasoning / rationale
Holding / decision (the court's answer to the legal issue posed) |
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| Why is business law important? |
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1. B/C compliance therewith is mandatory.
2. Necessary to achieve success (review reasons why) |
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| What are the 6 classifications of law? |
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Criminal / Civil
Procedural / Substantive
Public / Private |
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| how one should act. Business ethics is the study of ethical behavior in business |
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| Benefits of ethical business |
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Bottom line
Reputation / goodwill
Personal and societal responsibility
Society benefits as a whole |
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| 3 compromises of constitution |
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1. Separation of Powers
2. Federalism
3. Individual Rights |
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Article I
- Authorized Congress to pass legislation
- Created House and Senate
- Enumerated powers of Congress (tax, amend Constitution, pay debts, provide for the general welfare, regulate commerce, coin money, declare war, raise and support military, override presidential veto, for e.g.-- Appendix A) |
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Created President and Cabinet
- Establishes Presidential voting procedure
- Enumerated powers of President (Commander in Chief, make pardons, appoint judges, ambassadors, officers of US, execute treaties, veto legislation, for e.g.-- Appendix A) |
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- Created Supreme Court *(lower Federal courts created by Congress)
- Defined scope of cases that may be brought in Federal Court (arising under Federal law or Diversity [not racial-- means disputes between differing states or residents of differing states])
- Gave power to INTERPRET CONSTITUTION (Marbury v. Madison) and constitutionality of actions of other branches |
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- complicated subject, basic idea…ALL POWERS NOT SPECIFICALLY ENUMERATED (GIVEN) TO THE FEDERAL GOVERNMENT ARE SOLELY THE PROVINCE OF THE STATES
it is a system of government where sovereignty is constitutionally divided among the federal government and the individual states. |
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| What are the powers delegated to federal government? |
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-declare war
-create and maintain armed forces
-establish foreign policy
-regulate interstate and foreign trade
-make copyright and patent laws
-establish postal services
-coin money |
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| What are the shared powers? |
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-raise taxes
-provide for the public welfare
-criminal justice
-borrow money
-charter banks
-build roads |
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| What are the powers reserved to the states? |
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-establish local governments
-establish and maintain schools
-regulate trade within states
-conduct elections
-provide for public safety |
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Individual rights are guaranteed to the people (including businesses) by certain amendments to the Constitution.
These rights are conferred to the people by Constitutional amendments.
the BILL OF RIGHTS consists of the first 10 amendments |
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WHO is protected - rights of THE PEOPLE (individuals and businesses)
What is protected – rights (discussed below)
WHO are we protected FROM – THE GOVERNMENT: incorporation (all constitutional rights are incorporated in all levels of government) |
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| What did the US constitution establish? |
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US nation as sovereign entity
Framework for Government
Powers / Limits of Fed Gov. / State Gov. |
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| US constitution authorizes |
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Authority of Gov. to operate
Authority of Gov. to enact laws that govern societal conduct |
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Article VI, Clause 2
US Constitution; Federal Laws; Treaties is “supreme law of the land”
State v. Fed law conflict – Fed wins
Local v. Fed law conflict – Fed wins |
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| Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances |
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| What are the restrictions on first amendment rights? |
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1. time, place, manner restrictions
2. morality / obscenity (no constitutional protection)
- miller test
3. commercial speech (i.e. dominant theme to propose a commercial transaction)
- lower protection by First Amendment
- intermediate scrutiny
- false or misleading speech is not protected
4. Fighting words (those words likely to induce listener to fight)
5. imminent lawless action (speech directed to or likely to incite)
6. libel / slander (defamation) |
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-right to bear arms
- highly controversial
Individual right vs. collective right
Absolute right vs. militia
Application to the states? (most gun laws are promulgated by the states) |
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Right to privacy - - right to privacy
- secure from UNREASONABLE searches and seizures (unless warrant issued upon probable cause
- question: WHAT IS REASONABLE?
- balancing act
- (gov. interest vs. right to be free from intrusion)
- brief stops (“seizures”) must be accompanied by
“reasonable suspicion”
- arrests must be supported by probable cause
- entering a home must (usually) be accompanied by a warrant
- exclusionary rule |
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Grand Jury - Felonies must be tried upon grand jury indictment
Double Jeopardy – cannot be charged twice for same offense (but see crim v. civil)
Self-Incrimination – explained below
Due Process – explained below
Eminent Domain – explained below |
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Protected from implicating yourself in a crime
To “plead the fifth” - refuse to answer a question because the response could form self incriminating evidence
Requires Miranda Rights (failure = exclusionary rule) |
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- procedural (if gov. is going to take liberty or property – person must be given fair chance to oppose the action)
- substantive (upholds fundamental rights: i.e. liberties and freedoms) Some rights are so fundamental to this country that they cannot be violated |
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- If gov. takes: (i) LIBERTY; or (ii) PROPERTY*
- process due?
- formal / informal hearing? Discussion with the fact-finder? Letters? Emails?
- IT DEPENDS (positive relationship with importance of property or liberty interest)
- MUST be a neutral fact-finder |
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- basic idea: laws that infringes upon certain rights are INVALID (i.e. courts will strike down and not enforce)
- 2 general types of issues: (i) economic and social regulations (usually upheld); and (ii) fundamental rights (presumed invalid and usually struck down unless very compelling government interest) |
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the government can either: (i) take your property; or (ii) restrict the “use” of your property
- must be for “public use” (benefit the public or general welfare)* [courts uphold most of the time]
- must provide “just compensation” (FMV?) |
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- EQUAL PROTECTION CLAUSE
- basic idea (for those who didn’t read): the government MUST TREAT PEOPLE EQUALLY [generally speaking]
- really? The government treats people differently all the time (based on income, race, gender, gitmo, businesses structures, etc)
- There are three (3) groups
1. minimal scrutiny (econ and social regs)
2. intermediate scrutiny (gender, time/place/manner restrictions)
3. strict scrutiny (race, fundamental rights) |
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