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| Legal is separate from moral, law is the word of the soverign-whoever is in jurisdiction has the power to make laws, duty is to obey laws, protection in form of order, enforced through power |
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| Law derived from nature and is discvoered from nature or divine sources, property rights is a natural law notion that a persons labor when combined with natural resources creates property, inspired by instincts |
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| Schools of jurisprudence have no basis in reality, what courts and officials actually do rather than what the law says--looking at past cases and outcomes to serve as data to assist prediction on how future cases will come out but past cases don't dictate future outcome, people who want to know what happens when conflict arises, goes beyond words of law to examine what officials are actually doing as they enforce, interpret, and apply laws |
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| Sociological Jurisprudence and Historical School |
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Sources of law are derived from customs and traditions and law can be explained through social conditions and history--accepted because of the way things work, sociological grew out of historical, accepts because makes sense, legal principles that have withstood the test of time
emphasizes that contemporary law should focus on legal principles that have withstood the test of time in a nation |
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| Regina Versus Dudley Stephens |
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| Positivist (not combining morals and law), Natural Law (cannibalism), Realist (what will actually happen), Historical (when shipwrecked, survival is main goal-law of soverign doesn't apply when shipwrecked) |
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| Right to exclude or keep others from interfering with what you own, incentive to develop resources |
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| Emphasizes the role of judges in determining meaning of laws and how they apply |
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| Set of minimum standards accepted by society versus ethical values entail a higher moral standard |
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| Ethics has an absolute morality-right or wrong in every situation, rights, duty or moral obligation, duty to act just as you think everyone else should act, |
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| Concerned with moral consequences of actions rather than with the morality of actions, consequences must be evaluated for ethical implications, focuses on the common good-actions are ethical if they promote the common good |
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| Actions are judged by usefulness, common good, depends on the benefits or detriments to others |
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| Oversee and filter engineering reports, defect discovered that could render the product harmful to the user under normal conditions. Failure occurs in 1.2% of the tests and can result in serious injury. Instructed to tell no one about report and meet with engineers and reevaluate data to eliminate the concern. She then said her supervisor would write the final report |
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Weigh your values versus societyal values, let others realize the failure for themselves--could result in death which is unethical
Formalist: obligation to focus on rights
Consequentialist: what will happen to the company, consequences of actions for self, do whatever promotes the common good
Bob's role in company is important |
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| Businesses have a contract to promote the common good in the communities and societies with which they exist |
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Formalist: means to an end of increasing organizational efficiency, doesn't respect dignity
Consequentialist: punishment for wrongdoers but breach of trust may reduce overall morality and lead to less productivity |
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| Doing the right thing, even when noone is watching--adherence to moral and ethical principles |
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| Regina v. Dudley and Stephens |
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Definition
| Shipwrecked boat—act of cannibalism. Does the defense of necessity become available in circumstances where life was taken over to preserve another’s life. English judges decisively laid down common law concerning the issue and upheld the principle that human life is to be protected at all costs. Defense of necessity |
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| Sources of values for business ethics |
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Definition
| Legal regulation, professional codes of ethics, organizational codes of ethics, individual values |
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| Legal Regulation for Business |
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Definition
Unethical may be legal, ethical values often become law, law can reflect society's ethical values
Ethical rules drawn from the law: respect for others, acting in good faith, exercising due care (how fair and reasonable actions are, promotes common good), honoring confidentiality, avoidance of conflicts of interest-one attempts to serve 2 masters |
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| Professional Codes of Ethics |
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Definition
| Group standards from ethical conduct, honesty, responsibility, fairness, respect, openness, citizenship |
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| Organizational Codes of Ethics |
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Definition
| Codes of conduct, honesty and adherence to the law, protection of the environment, health and safety in the workplace, financial reporting |
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| Ethical implications of what you decide, proud to tell action ot family, willing for everyone to act as you do, harm to the environment, violate the law |
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| Ethical Obstacles in the Workplace |
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Definition
1. Business pressures have forced businesses to violate ethical standards
2. Ethical problems of an individual
3. Primary goal of business: make a profit-ethical shortcuts
4. Individuals feel less responsible for what happens to a group
5. Diminished sense of responsibility-groupthink |
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| Act as role models for values to communicate, Code of conduct expresses ethical values but management expects profits at any cost, communicate belief of values through corporation |
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| Ethical corporate behavior depends on managers who recognize and take into account the various stakeholders whose interests corporation impacts |
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| Rewards of ethical behavior |
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Definition
1. Profits can be linked to ethical behavior
2. Ethical organizational life is a business asset, unethical behavior is a liability
3. Ethics concern business community
4. Business ethics reflect business leadership
5. Businesses that don't act ethically sever itself from society and from own source of support |
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Definition
Right to possess, use, and transfer resources, the more resources that can be put together under the legal system of property the less wastefully the resources will be treated--more careful with own resources and incentives to develop resources, encourages prosperity and freedom
-system of personal-right, basic system of personal ethics, ordering of relations between people |
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| More powerful law, because the document says that it's the most powerful-supremacy clause gives Constitution the authority |
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| Laws from legislature-sets forth own state rules |
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| Judges create precedent, judges create laws and look at past cases for guidance, inherited from Britian-values judges to the extent that they can make law |
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| Decide whether actions are protected by amendments, deals with foreign ambassadors, state arguments, acts as trial body |
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| Power to determine constitution and supremacy |
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| Roles in Court, Judges, Jurors, Court |
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Definition
•Judges: apply the law to the facts
•Jurors: find or determine the facts from conflicting evidence
•Court: way to enforce our laws in a property-based legal system |
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| The power to speask law, and hear any type of case, don't accept cases unless involved in trivial matters |
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| Governed by the facts that state constitutions provide the general framework for the court system, statutes add body to the framework |
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Common courts, courts of commoon plea, district courts
parties file lawsuits or complaints seeking to protect property rights or redress a wrongdoing
o Responsible for determining the facts and law in the case |
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| Right to review case by a higher court, Courts of appeal-3 to 5 judges, Supreme Court: highest court-reviews 7 to 9 judges |
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Definition
| Extends to matters involving federal law, US as a party, controversies among states, and suits between citizens of different states (diverstiy of citizenship) |
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| It means that a case involving questions that must be answered according to state laws may be heard in federal court if the parties on the two sides of the case are from different states. No matter how many parties are involved in a lawsuit, there must be complete diversity in order for the federal court to exercise this type of authority. |
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Definition
| Trial Courts of the federal Judicial system |
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| Supreme Court-asking for review |
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Definition
| Granted in cases of importance where there is a conflict of interest in important area of law-taken if 4 or 9 choose to |
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| Supreme Court-asking for review |
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Definition
| Granted in cases of importance where there is a conflict of interest in important area of law-taken if 4 or 9 choose to |
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| Judicial Activism versus Judicial restraint |
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Definition
| Power should be used whenever the needs of society justify its use/Power should not be used except in unusual cases |
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| Nature of the judicial process |
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Definition
| Examine precedents to find underlying principle and determine path along which the principle is to work and develop |
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| Forces that shape the progress of the law |
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Definition
| Logic, history, custom, utility, and accepted standards of right |
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| Subject Matter jurisdiction |
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Definition
| Legislatures create courts and tell courts what subject matter they have authority over, Plaintiff must show court has subject matter juristiction (entitled to have court decide dispute) |
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Definition
Plaintiff volunteers to jurisdiction by filing complaint then court evaluates whether qualifies
-summons issued-summoned to answer complaint |
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Definition
1. Dependency on cause of action to appear in court-awareness of whats happening
2. Able to defend in court |
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| Defendants are required to come to state, because plaintiffs had to follow defendants to state and justice wasn't served |
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| Due process/Long-arm statutes |
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Definition
| Allows court to obtain jurisdiction over defendant even though process is served beyond borders if defendent has committed tort within state, owns property in state that is subject matter, entered into contract within the state or business transactions in state |
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| Court-Balanced Equation for Long Arms |
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Definition
| Court balanced the equation to give both parties benefits-sociological jurisdiction between plaintiff and defendent |
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Definition
| Use legislation to determine what law is-not determined by judges-do not make law or have to follow the precedent |
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Definition
includes those matters that involve the regulation of society as opposed to individuals interacting
i. Constitutional law: involves the interpretation and application of either the federal or state constitutions
ii. Administrative law: covers the legal principles that apply to government agencies, bureaus, boards, or commissions
iii. Criminal law: specifies various offenses against the proper order or the state |
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Definition
| How courts interpret and apply meaning of legislation, legistlature that governs a city, state or county |
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Definition
| Made by judges and create precedent-past laws. Mostly created in appeals because written down and authority cited |
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Definition
| emphasizes that contemporary law should focus on legal principles that have withstood the test of time in a nation |
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Term
| Sociological Jurisprudence |
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Definition
supports the idea that law can and should change to meet new developments in society
i. Similar to the belief that law reflects culture of a nation |
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Definition
| tries to go beyond just the words of law to examine what police, administrators, prosecutors, and judges are actually doing as they enforce, interpret, and apply laws |
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Legal problems that concern private resource relationships
Property Law, Contract Law, Tort Law |
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| Most significant source of law-statutes at the federal level and ordinances at the local level |
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| Let it stand at the precedent-secure with knowing the precedent |
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Definition
U.S. Constitution and Amendments
Statutes (Passed by Congress)
Federal Administrative Regulation
State Constitutions
State statutes
State Administration regulation
Local ordinances
Case Law |
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Definition
Judges: Individuals who operate courts
Justices: Supreme Court judges
Determine applicable rules of law to decide a case |
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| Preson who is serving on jury-sworn body of people convened to render a verdict |
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| Required, Present evidence-councelor, advocate, public servant |
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| Lawsuits begin at the trial court level and are reviewed at the appellate court level |
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Operated from:
State Constitutions provide general framework, state legislatures enact statutes that add to the framework |
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| Parties file lawsuits, describes the facts and law |
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| Parties to litigation are entitled as a matter of review of their case by a higher court |
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Diversity of citizenship (from 2 different states)-held in federal to remove bias
-questions of federal law, US as a party, disputes among states |
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Definition
Trial courts of the federal judicial system-one in every state
-Compliant describes facts and law giving rise to the cause of actions and relief requested by court |
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| 12 Appelate Courts Across the U.S. |
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| Decisions by Supreme Court |
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Definition
Obtained by writ of certiorari-4 to 9 justices to take the case
-Final judgements of a state reviewed only by Supreme Court |
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Definition
Landmark case in U.S. that formed basis for judicial review in the US by declaring law unconstitutional-Judiciary Act of 1789 (Judicial power should be invested in one supreme court) Madison refused to deliver commission to Marbury because of statute. Established checks and balances within the government
-Federal disputes can go straight to SC when federal official doesn't do duty |
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Definition
| Legislative and executive actions are subject to review, and possible invalidation, by the judiciary |
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| Power of judicial review should be used sparingly-strict constitutionalism, interpreted in light of founding fathers, political change should come from legislation |
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Definition
| Power should be used whenever needs of society justify i, more reult focus and less on precedent |
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Definition
Plaintiff must establish that he/she is entitled ot have the court decide the dispute
-litigation involves case or controversy
-plaintiff must allege a personal stake in resoolution |
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| Personal/Subject matter jurisdiction |
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Definition
Court must have power over the matter
Summons: notice to appear in court
Long arm statutes: ability to provide service of process beyond state boundaries |
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Allows judiciary to be the 1 voice change in the Constitution-2/3 vote in Congress, 3/4 States-4/9 must decide to hear the case in Supreme Court
Judiciary: interpreters, uphold supremacy of Constitution |
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Definition
Pleadings: legal documents filed with the court to begin process
Summons: Sent to defendant
Complaint, Answer |
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Definition
| 1. Purpose: discovery procedures are to ensure laws are based on merits-each side is fully aware of all the facts |
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Definition
| Pretrial determinants of parties rights, time limit for litigation, judge must decide solely on complaint and the answer |
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Definition
Jurors are summoned by the court clerk
Voir dire: must speak the truth, jurors examined to see where they stand on the case |
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Definition
| Each side can excuse a certain number of jurors without reason or cause |
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| Nature of the Judicial Process |
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Definition
• Examine and compare cases cited so it can determine which is correct and whether principles should continue to be followed
• Judge must look to the precedents to find the underlying principle (ratio decidendi) and determine the path along which the principle is to work and develop
• Subconscious forces keep judges consistent with one another
• Logic, history, custom, utility, and accepted standards of right conduct are forces that shape the progress of the law |
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Definition
| Person must come forward on an issue and the party alledging the facts has duty to come up with evidence |
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| Based on the proceedings, testimony and issues if handled correctly and to make sure lower court did not reach an erroneous result-each party files a brief with a description of the case and an argument for reversing or affirming decision |
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| Attourneys given time to orally state their case |
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| plaintiff must establish entitlement to have courts decide dispute |
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| Court must have authorities over parties of the case-obtained over plaintiff when suit is filed through pleadings and obtained over defendent through summons |
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| Power to govern is shared by national and local |
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| Between federal government and federalism-between federal and state |
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| Federal law can obstruct an area of law |
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No state shall pass any law impairing the obligation of contracts
-states cannot pass laws that impact rights and duties under existing contracts |
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| Article 1, Section 8-Congress has power to regulate Commerce with foreign nations, among states, and with the indian tribes |
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| Exclusive federal power, states may regulate activities that relate to foreign if actions are entirely within boundaries |
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Persons engaged in activities affecting interstate commerce
-activities that could affect interstate commerce |
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| Limitation on state and local police power |
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Definition
| Require state legislation and regulation to protect public health, safety, morals, general welface-not limitless but can't violate commerce clause |
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| Government regulation of commerce |
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Definition
Exclusively federal: internal matters where uniformity on nationwide bases is vital
Exclusively state: interstate acts that don't have substantial effect on interste commerce
Dual regulation: Federal preemtion (state power is void because of supremacy and commerce clause), federal regulation but no preemption (state regulation is permitted but if conflict is irreconcilable, statute wins over state, unvalidates state laws imposing undue burden on interstate commerse), no federal regulation (joint refulation) |
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| Limitation on state taxation |
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Definition
| Allocate tax burden of interstate business among states entitled to tax |
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Definition
| If federal law preempts an area of law, no state law can be created in that area |
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| Amendments and basic protections |
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Definition
| Freeom of religion: no law respecting established religion or prohibiting free practice |
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Definition
| Verbal and written communications, symbolic speech, commercial speech not protected until 1970s when SC acknowledged it is essential to public knowledge, must be compelling reason to limit commercial speech |
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Definition
government may not act in an arbitrary, capricious, or unreasonable mannor “fundamental fairness and decency”
• Procedural due process: proper notice given and proper hearing conducted |
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Definition
| Soverign representation of larget community |
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Sabotage of justice, as voters convict without evidence of reasonable doubt or refuse to convict even if evidence points to guilt
-the attempt to remove discrimination against racial minorities is positive but they rendr the administration of justice vulnerable to resentments, and prejudices or minorities who have been victimized
-blacks refuse to send any blacks to prison
-racial polarization can play a large role in jury process-minorities have exercise of power |
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Definition
| Nullify laws that jury doesn't like or aggree with, Jury nullification occurs in a trial when a jury reaches a verdict contrary to the weight of the evidence and contrary to the letter of the law (an official rule, and especially a legislative enactment). A jury exercising its power of nullification need not disagree with the judge's instructions themselves—which concern what the law is—but may rule contrary to the instruction in light of the actual evidence admitted in the case. |
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| No person should be tried twice for same crime |
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Definition
| States use advantages for citizens-tax other states to pay more so congress was given power over federal revenue, borrow money on credit of the U.S., regulate commerce w foreign nations, between states, tribes |
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Definition
| Perez convicted for lending money that charges high interest rates (loan shark)-didn't defend against being loan shark but about Congress' ability to regulate power. Loan shark affects economic activity, and fits into class of activities (done in other states) |
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Definition
| Grew too much wheat which interfered with interstate market during the Great Depression-grew wheat for family and animals. Affected national prices of the market, because would have purchased from market-viable at the federal level |
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| Katzenback versus McClung |
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Definition
| Supreme Court held Congress acted within power under the Commerce Clause in forbidding racial discrimination in restaurants because it was burden to interstate commerce, limited business and affected economic activity-regulate peoplel engaged in interstate commerce/commercial activity, serve nonAlabama residents and food moved across state lines, class of activities nationwide |
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Definition
| Regulate commercial activities if activity goes on in more than 1 state-loan shark |
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Definition
Limited power under Commerce Clause
-state claimed that it would affect economic activity through slippery slope because unsafe-->less education-->less employment-->regulate economy
Congress must regulate activities that substantially affect interstate commerce-handgun doesn't relate to economic enterprise
-commerce better done at state level, limited power at federal level, Wake up call to Congress
-petty crime best handled at local |
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Definition
Violence Against Women Act-exceeded Congressional power and right to sue attackers in federal court
-lacked authority to punish for rape because physical crimes committed under state powers and were not economic in nature
-used Lopez to overturn, activitiy was not economic or commercial in nature
-power of judicial review to claim acts of congress=unconstitutional |
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Definition
Out of state wineries restricted from selling to in-state consumers
-3 tier for out of state to wholesalers, consumers, increase cost
Michigan violates interstate commerce because can't treat in state and out of state differently because of economic interests that benefit in state
NY: out of state not allowed direct shipment, but states cant require out-of-state firm to become a resident
-states are given the right to regulate alcohol under the 21st amendment, but doesn't trump commerce clause-can regulate as long as it doesn't affect interstate commerce |
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