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149 Cards in this Set

  • Front
  • Back
What is the constitution
Written document establishing the structure of
government and its relationship to the people.
U.S. Constitution created the structure of our_____and gave it _____, it also placed
______ on those ____
national government, cetrain powers,limits on those powers
Legislative Branch
(Congress) - to make laws.
Executive Branch
(President) to execute or enforce the
laws
Judicial Branch
(Courts) to interpret the laws.
President and courts appoint
administrative agencies
SUPREME COURT’S AUTHORITY
district, appellate & Supreme
courts
special jurisdiction (i.e., tax &
bankruptcy)
duty & power to declare what law
is
Article III Courts –
district, appellate & Supreme
courts
Article I Courts –
special jurisdiction (i.e., tax &
bankruptcy)
Judicial Review –
duty & power to declare what law
is
Marbury v. Madison – Article VI, Section 2 gives
Supreme Court authority to reviews acts of congress
& determine their constitutionality (Supreme Court has
authority to declare a statute unconstitutional & refuse
to apply it.)
the supreme court can also:
review state laws
Review of state law essential to development of uniform
constitutional principles.
idk
State court judges must follow ---- even when
state laws conflict with it.
the constitution,
The supreme court has the Power to assess state ----extends from its role as
ultimate arbiter of Constitution
legislation
Certiorari –
process by which Supreme Court
determines which cases it will hear – full discretion.
STANDARDS FOR GRANTING
CERTIORARI
Conflicts between different federal courts of appeal

Conflicts between highest courts of two states

Conflicts between state’s highest court & a federal
court of appeals.

State court or federal court of appeals decision
involving an important question not yet settled by
the Supreme Court.
Case must be based on ----

--- vote requirement
federal law, four
EXECUTIVE POWER
Presidential appointees

Presidential pardons and reprieves

Veto powers

War Powers (Iraq 1991/2003).
LEGISLATIVE POWER
Regulate commerce with foreign nations
and between states.
— Provide for the common defense and
general welfare.
— Coin money.
— Establish post offices.
— Lay and collect taxes.
— Issue patents and copyrights.
— Declare war.
— Raise and support armies.
CONFLICTS BETWEEN BRANCHES
how are they solved
Checks and balances
President immune from criminal prosecution for
acts taken as president, unless first impeached.
Executive Privilge does not cover actions of
President that occurred prior to taking office.
Under separation of powers doctrine, President
cannot exercise a line item veto (gave president
legislative powers)
FEDERALISM
Federal government’s powers are limited to those
expressly set forth in the U.S. Constitution. These
powers are also subject to specific restrictions such
as those found in the Bill of Rights.

Federal system is dual system of government:
National & State governments

11th A – Further protects the balance between the
powers of the federal government and the states by
granting immunity to states sued in federal court
We, the People
give power to…
The states, who
ratified the…
The states, who
ratified the…
U.S. Constitution, which reserves some powers
for the States, delegates some powers to the
Federal government, and allows some powers
to be shared, or exercised by both.
U.S. Constitution, which reserves some powers
for the States, delegates some powers to the
Federal government, and allows some powers
to be shared, or exercised by both.
federal and state gmnt
FEDERAL SUPREMACY
Bars or preempts state regulation when a federal
law regulates that particular subject.

Preempts state action when congressional intent to
regulate exclusively can be inferred from the details
of the congressional regulation.
Delegated Powers –
Powers given by the states to
the national government.
Some delegated power given exclusively to national
government
Declare war

Establish currency
Shared Powers
–powers delegated to the national
government that may still be exercised by the
states
State Police Power.
– adopt laws to protect general
health, welfare, safety & morals of the people.

—

May not unreasonably interfere with federal powers
Ex post facto laws –
make criminal act that has already

been committed criminal but was not criminal when it
was committed.
In the bedrock view,
the purpose of a constitution is to
state certain set principles.
—

In the living-document view,
a constitution states goals
and is intended to change with time.
In recent years the use of the
------- interpretation has expanded the powers of the federal
government.
living-document
The Living Constitution reqquires
Strong Government

Strong President

Eclipse of the States

Administrative Agencies
Formal
Amendment
Only 27 formal
amendments to the
Constitution have
been completed,
though thousands
have been proposed.
(b) Judicial
Interpretation –
The U.S. Supreme Court
has been called upon to
apply the Constitution
to many new situations,
unforeseen to the
document’s original writers.
By Practice –
In a few cases, the
actions of government
have established
accepted practices
which depart from the
requirements of the
Constitution.
The Constitution has been amended, or changed,
in three ways:
fromal ammendment, practice, judicial interpertation
FEDERAL POWERS – COMMERCE
CLAUSE
Commerce Power Becomes a General Welfare Power

The Commerce Clause today follows “affectation” doctrine
- Is interstate commerce affected by activity regulated?

Commerce Power as a Limitation on States –
Prevents states from acting in a way that interferes with

federal regulation or burdens interstate commerce

Dormant or Negative Commerce Clause - State
regulation will be upheld if it:

Is rationally related to a legitimate state end, and
Does not create an undue burden on interstate commerce.
FEDERAL POWERS – FINANCIAL
POWERS
The Taxing Power

The Spending Power

Defense, welfare, debts

The Banking Power

Congress can create & legislate banks
BILL OF RIGHTS
The first 10 amendments to the U.S.
Constitution are called the Bill of Rights
which contain specific guarantees of
individual liberties and limitations on the
federal government from infringing with
those liberties.

Provides protection for individuals and
corporations
First Amendment
guarantees freedom of religion,
speech, press, and assembly, while prohibiting the
establishment of religion
Fourth Amendment:
prohibits unreasonable
searches and seizures
Third Amendment
: no soldier shall be quartered in
any house.
Second Amendment
guarantees the right of the people to
bear arms
Fifth Amendment.
—

Grand jury requirement.

—

Forbids double jeopardy.
Right to remain silent.
Prohibits deprivation of life, liberty, or property without
due process
Just compensation for taking of private land.
Sixth Amendment.
Guarantees speedy and public trial in all criminal
prosecutions
Eighth Amendment.

—
Prohibits excessive jail or fines, as well as cruel
and unusual punishment
Seventh Amendment.
—

Right to civil trial by jury if value is greater than
$20.
CONSTITUTIONAL LIMITATIONS ON
GOVERNMENT – EQUAL PROTECTION OF
THE LAW
Reasonable Classification: Rational basis
between wrong and classification

Improper Classification: Distinctions in
business, right to work, and right to use or
enjoy property on basis of race, religion
are invalid.
ON GOVERNMENT – PRIVILEGES &
IMMUNITIES
Article IV

Means that a person going into another
state is entitled to make contracts, own
property, and engage in business to the
same extent as a citizen of that state.

Allows businesses across state lines

Right to move from state to state.
CONSTITUTIONAL LIMITATIONS ON
GOVERNMENT – PROTECTION OF THE
PERSON

Bill of Rights now includes rights
not expressly mentioned in U.S.
Constitution
¢ Right

¢ Right

¢ Protection

¢ Right

to privacy

to marry

from discrimination

of association
What is a tort?
— Tort is a non-criminal or civil injury to

a person or his/her property interests.
Crime arises from ------ whereas tort arises from
----------
Same act can be both a crime and a tort.
violation of public
duty,violation of
private duty.
Types of Torts
Intentional: substantial certainty.

Negligence: breach of standard of care.

Strict Liability: liability without fault.
Intentional:
substantial certainty.
Negligence
: breach of standard of care.
Strict Liability:
liability without fault.
Intentional Torts
Assault
Battery
False Imprisonment
Intentional Infliction Of Emotional Distress
Invasion Of Privacy
Defamation
Product Disparagement
Wrongful Interference With Contracts
Trespass
False Imprisonment.
– Intentional detention without consent.
— Battery:
intentional, wrongful touching of another
(the completion of the assault).
Assault -
Fear of imminent harm with means to do

it.
– Shopkeeper’s Privilege
permits detention for reasonable time
with reasonable suspicion.
— Intentional Infliction of Emotional Distress.
Intrusion into plaintiff’s private affairs.
– Outrageous conduct which goes beyond all bounds of decency.
— Invasion of Privacy.
Public disclosure of private facts.
Appropriation of another’s image or likeness for commercial
advantage.
Defamation.
Untrue statement published to a third party that damages a
person’s property interest.
Slander is oral defamation.
Libel is written (broadcast, internet).
New Statutory Privilege:
for truthful letters of
recommendation about former employees.
Absolute Privilege:
when members of Congress speaking on
floor of senate or House, witnesses in court proceedings.
Qualified Privilege:
as long as released without malice and a
retraction is made.
Qualified Privilege extends to workplace when statement is
made to protect interests of private employer.
— Consent.
If the plaintiff consented to the act of the defendant, there is
no tort. Even if the plaintiff did not explicitly consent, the law
may imply consent
Trespass –
unauthorized access
Land - Unauthorized entry
Personal Property
Wrongful Interference with Contracts.
– Third party (A) substantially interferes with a contract
between B and C, causing either B or C to break the contract.
— Product Disparagement.
– Slander of Title/Trade Libel.
– False statement about a product.
tort defenses
— Consent.

If the plaintiff consented to the act of the defendant, there is
no tort. Even if the plaintiff did not explicitly consent, the law
may imply consent

— Self-defense or defense of others:
May also absolve the defendant of liability.
— Protect individuals from physical and intangible

injuries.
— Protect interests in property.
— Protect certain economic interests and business
relationships.
Negligence

— Definition:
Negligence exists when a person acts with less care than is

reasonable, causing foreseeable injury
Negligence

— Elements
Duty to Exercise Reasonable Care.
•
Professionals: Malpractice.
Breach of Duty.
•
By statute or reasonable person standard.
•
May be established by an ‘expert
Causation. Connects duty with injuries to plaintiff.
—
“But For” defendant’s action, plaintiff would not

have suffered the injury.
Proximate Cause: plaintiff’s injury was
foreseeable
Negligence

— Damages.
‒

‒

Past and future pain and suffering, physical
impairment, medical care, loss of earning
capacity. Experts help juries “quantify” the
injuries.
Joint and Several Liability: when actions
of two or more defendants impose liability
on all actors. Each one is responsible for all
injuries
Negligence

— Defenses:
: burden is on defendant to prove plaintiff
knew about risk and chose to proceed.
Contributory Negligence:
Comparative Negligence:
Assumption of Risk
immunity
Contributory Negligence:
Contributory Negligence: plaintiff’s partial negligence bars
recovery for his injuries.
Comparative Negligence:
determines the fault of both parties.
If Plaintiff is >50% at fault, he recovers nothing
Assumption of Risk
Express Assumption: usually exculpatory writing.
• Implied Assumption: subjective, based on circumstances
• .
Immunity:
governments are generally immune from tort
liability
Strict Liability
— Ultra Hazardous Activities.

Defendant’s activity is so dangerous that no amount of care
could protect others from the risks of harm

— Imposing Strict Liability: Can involve transportation of

toxic materials, but most common is product liability
A. What is Business Ethics?
A. The Law as the Standard for Business
Ethics
B. The Notion for Universal Standards for
Business Ethics
C. The Standard of Situational Business
Ethics or Moral Relativism
D. The Business Stakeholder Standard of
Behavior
Law as the Standard for Business
Ethics.

A. Positive Law:
if an act is legal it is
‘moral.’
Notion of Universal Standards for
Business Ethics.
A. Natural Law: higher standards for
ethics.
B. A law can be legal but unethical.
a. The Standard of Situational Business
Ethics or Moral Relativism.
• Flexible standard of ethics that
considers situations and motivation
before concluding an action is right or
wrong.
Why is Business Ethics Important? [LO.2]
Business Ethics and Business
Regulation: Public Policy, Law and Ethics.
Importance of Trust.
Business Ethics and Financial
Performance.

7. Importance of a Good Reputation.
Business Ethics and Financial
Performance.
A. Long-term success is linked to values.
B. Poor values do have an effect on
financial performance.
C. The Enron example.
Business Ethics and Business
Regulation: Public Policy, Law and Ethics.
Complaints from customers and
stakeholders may lead to change in laws –
which change corporate behavior. Goals
include:

(A) Protection of the State.
(B) Protection of the Person.
(C) Protection of Public Health, Safety, and
Morals..Protection of Property: Its Use and Title.

(E) Protection of Personal Rights.
(F) Enforcement of Individual Intent.
(G) Protection from Exploitation, Fraud, and
Oppression.(H) Furtherance of Trade.
(I) Protection of Creditors and Rehabilitation
of Debtors.
(J) Stability and Flexibility.
C. How to Recognize and Resolve
Ethical Dilemmas
1. Categories of Ethical Behavior
2. Resolving Ethical Dilemmas
Categories of Ethical Behavior.
Integrity and Truthfulness.
Promise-Keeping.
Loyalty: Avoiding Conflicts of
Interest.
Fairness.
Doing No Harm.
Maintaining Confidentiality.
Blanchard and Peale Test.
1. Is it legal?
2. Is it balanced?
3. How does it make me feel?
(B) Front-Page-of-the-Newspaper Test.
1. Would I want my decision published?
(D) Wall Street Journal Model (3 C’s model).
–
Is my conduct compliant with the law?
– What contribution does this action make to
others?
– What are the consequences?
(C) Laura Nash Test:
Requires examination
from all perspectives.
Federal
 US Constitution
 Establishes federal
government
 Establishes limitations on both
state & federal actions
 Is the “supreme law of the
land”
 Establishes 3 branches of
federal government
Legislative
Executive
Judicial
State
 Each state has its own

Constitution
 State may grant greater
rights to its citizens than
are granted by the US
Constitution but may not
limit or take away rights
granted or protected by
the US Constitution
Federal
statues
 Laws are passed by vote

of both houses & signed
by President
 Presidential veto may be
overridden by vote of ¾
of each house
 Constitution provides
sources of power for
Congress to act

Examples: Commerce Power
& Spending Power
state statues
Each state must pass

legislation according to
rules applicable in that
state, usually
established by the
state’s Constitution
Treaties
 Agreements between countries

 Made by the president with advice and consent of

Senate
 Usually on same level as federal statutes
 Require Congress to implement them
Executive Orders & Proclamations
 President may issue at Federal level

 Governor may issue at State level

 Executive Orders have force and effect of law but

cannot override Congressional action
 Proclamations may be used to commemorate
persons, places or events
Common Law – Case Law
 Probably largest body of law

 Examples: Tort law, contract law, property law

 Best on decisions of state & federal courts

 Binding effect based in subsequent cases is based on

doctrine of stare decisis or precedent
Stare Decisis
 Definition: “to abide by, or adhere to, decided cases”

 “the doctrine that when a court has once laid down a

principle of law as applicable to a certain state of
affairs, it will adhere to that principle, and apply it to
all future cases, where the facts are the same or
substantially the same.”
Reasons for Stare Decisis
 Prevents judges from acting arbitrarily

 Instrument of convenience and expediency

 Provides substantial degree of certainty & reliability

 Fairness & equality
 What is decided from one person on a certain set of facts
should not be decided differently when only change in the
relevant facts is identity of attributes of the next person.
Holding v. Dictum
Court is not bound by words used in a prior decision nor all of
the reasoning used; it is only bound by the legal principle or
principles that were necessary for the previous court to reach
its decision.
Previous opinion may have talked about things not necessary
to the outcome.
2) Prior decision binding only if facts in subsequent

cases are the same or substantially the same as in
previous case.
- If significant differences previous case may be
distinguished and will not be binding on
subsequent case.
3) Bound by majority opinions only
- Concurring & dissenting opinions
Qualifications to Stare Decisis
 Article III Courts –
 Derive power from Article III of the Constitution.
 Article I Courts
 Established by Congress
 US Supreme Court (9 justices)

 US Circuit Courts of Appeal (13 Circuits representing

multiple states)
 US District Courts (94 districts; some states have
multiple districts, some only one)
 Two specialty courts (non-general jurisdiction):

US Court of International Trade (NY: handles cases involving
tariffs & international trade disputes)
US Court of Claims (DC: cases against government)
(Article III Courts)
 Magistrate Courts (certain criminal & civil matters)

 Bankruptcy Courts (cases arising under Bankruptcy

Code)
 US Court of Military Appeals (cases arising under
Uniform Code of Military Justice)
 US Tax Court (cases arising over alleged tax deficiencies)
 US Court of Veterans’ Appeals (cases arising from denial
of veterans’ benefits)

 Judges appointed by president with advice & consent of

Congress.
Federal Courts (established by Congress)
Probate (administering
estate of person who dies)
Family (adoption,
annulments, divorce,
custody, child support
Traffic (violations of
minor traffic laws)
Small Claims (usually
suits between private
persons of relatively low
dollar amount)
Limited Jurisdiction
Involve both civil and
criminal cases
Sometimes called circuit
courts, superior courts,
courts of common pleas &
in NY, supreme court.
Can sometimes hear
appeals from court of
limited jurisdiction
General Jurisdiction
Immediate Appellate Courts
 Any party may appeal judgment of state trial court as a matter
of right
 Courts only alleged procedural mistakes & errors of law made
by trial court
 Will usually not review the facts of the case or accept
additional evidence.
 Usually sit in panels of 2 or 3 judges
Supreme

Courts
 Discretionary review as to whether to accept a case.
 If state does not have intermediate appellate court,
appeals may be taken to this court as a matter of
right.
 May have original jurisdiction in matters such as
elections and reappointment of legislative districts.
 Diversity of Citizenship
 Civil cases in which parties are residents of different states &
amount in question exceeds $75,000.
 Courts required to apply state law since issues concern matters
of state law
 Federal Question
 Cases arise under US Constitution, laws of US & treaties made
under authority of the US.
Types of Federal Question Casesmore
 Suits between states

 Cases involving ambassadors or other high ranking

public figures
Federal Crimes – from US Constitution or federal statute
(i.e., treason, piracy, counterfeiting)
Bankruptcy
Patent (exclusive right to make, sell… 17 years)
Copyright (property right to original work of authorship)
Trademark (word, phrase, symbol used to distinguish
product or product from those of others)
Types of Federal Question Cases
more
Admiralty – maritime contracts, torts, injuries &

offenses
 Antitrust – protects trade & commerce from
restraining monopolies, price fixing, etc.
 Securities & Banking Regulations – regulates
registration, offering & trading of securities & also
banking practices.
 Other cases specified by federal statute
Brief
 Title & Citation

 Facts

 Issue

 Holding

 Reasoning
The Parties
 In Civil cases, Plaintiffs sue Defendants

 In Criminal cases, Government prosecutes

Defendants.
 Person who appeals is Appellant, opponent is
Appellee
 Person seeking Writ of Certiorari is Petitioner,
opponent is respondent
 Amicus Curiae (“friend of court”) file briefs on behalf
of respondents to persuade court to arrive at decision
favorable to them.
breif
The Brief

 Facts
 Summary of complaint (civil) or indictment (criminal)
 Summary of actions of lower court (i.e., defendant convicted,
conviction upheld by appellate court, Supreme Court granted
certiorari)

The Brief (continued)

 Facts – issues or questions of law peculiar to the case

 Decisions (Holding) court’s answer to question

presented to it or raised by court itself in its own
reading of the case.

Procedural holdings (case reversed & remanded)
Substantive holdings (deal with interpretation of Constitution,
statutes or judicial doctrines)
If issues precisely drawn – can be yes/no holding with short
statement

 Reasoning – rationale
 Separate Opinions – concurring & dissenting
 Analysis – significance of case, relationship to other cases, etc.
who prepairs summons
Clerk of court prepares a summons
Plaintiff files a complaint
Briefly states grievance & alleges

Particular facts giving rise to dispute;
Legal reason why plaintiff is entitled to remedy;
Prayer, or request for relief







Should also explain why particular court has
jurisdiction over alleged dispute and indicate
whether plaintiff requests jury trial (if not done
within time limit, right is deemed to be waived
Summons officially notifies defendant that
Plaintiff or clerk serves official summons &

complaint on defendant (usually done by
mail)

a lawsuit is pending;
in particular court; and
Defendant
must file response within certain # of days.
Answer & Counterclaim
 Defendant’s answer may admit or deny the

various allegations
 May state that defendant believes it lacks
sufficient information to assess truth of
allegation (has effect of denial)
 May deny that law provides relief for plaintiff’s
claim regardless of whether plaintiff’s factual
allegations are true.
May put forth affirmative defenses


Admits defendant acted in certain way but

Defendant’s conduct not real or legal cause of
harm to plaintiff
Defendant’s conduct is excused for some reason
Default Judgment
 If defendant does not answer within time

required, a default judgment may be entered
in favor of the plaintiff.
 Defendant may ask court to set aside default
judgment if there were extenuating
circumstances for not filing on time.
 Motion to Dismiss (with or without prejudice)
 plaintiff’s claim is technically inadequate (court lacks
jurisdiction over parties or subject matter)
 Plaintiff failed to properly serve defendant
 Plaintiff failed to state a claim on which relief can be
granted
Motion for Judgment on Pleadings
– complaint alone
demonstrates action is futile
 Affidavits –
sworn statements or other evidence to
show cause of action is without merit
Motion for Summary Judgment
All written evidence before court clearly
establishes that there are no disputed issues
of material fact; and
A party is entitled to judgment in its favor as a
matter of law.

Can issue summary judgment of some issues
and not others – called partial summary judgment
All written evidence before court clearly
establishes that there are no disputed issues
of material fact; and
A party is entitled to judgment in its favor as a
matter of law.

Can issue summary judgment of some issues
and not others – called partial summary judgment
Attorneys and judge meet to discuss progress
of the case.
Judge may hold settlement conference to give
each side a candid assessment of the
strengths and weaknesses of its case & likely
outcome if case goes to trial.
Trial plan
trial
Selection of jury

 Opening statements

 Presentation of evidence
 Direct Examination, Cross Examination,
 Redirect, Recross

 Motion for directed verdict by either attorney

 Closing arguments

 Judges instructions

 Jury deliberation

 Announcement of jury’s verdict
selection of jury
Process is called voir dire

 Limited # of preemptory challenges

May be inclined to decide for other side
(cannot remove juror due to race or gender)

 Unlimited # of challenges for cause

Relationship between the potential juror and
any of the parties or their counsel.
joury is called selection
voir dire
Motion for Directed Verdict
 After all evidence presented

 Either attorney may ask judge for DV

 Moving party asserts that other side has not

produced enough evidence to support legal
claim or defense alleged
 Takes case away from jury & directs verdict
be entered in favor of moving party
 Does not frequently happen
jour verdict
Jury Verdict

 After both sides present closing arguments

 Judge instructs jury on applicable rules of law

 Jury deliberates & delivers its verdict





Specifies prevailing party; and
Relief to which that party is entitled.
Judgment Notwithstanding the Verdict
(JNOV)



Serves to reverse the jury verdict on ground
that the evidence of the prevailing party was
so weak that no reasonable jury could have
resolved the dispute in that party’s favor
New Trial –
if serious errors in trial procedure



i.e., misconduct, improper admission of
evidence
appeals
 Appeals
 Appellate court reviews manner in which trial
judge applied law to the case & conducted the
trial.
 Can review presentation of evidence, denial of
motion for directed verdict, jury instructions,
jury award of damages.
 Will not review the facts de novo & will reverse
only if judge’s findings are clearly erroneous.
 If appellant loses before court of appeals, can
appeal to Supreme Court.
Alternative Dispute Resolution
 Negotiation Mediation Arbitration Med-Arb Arb-Med Minitrial –
 Summary jury trial
 Mediation –
facilitated by third party neutral
Arbitration –
resolution by neutral third party
 Med-Arb –
parties agree to binding arbitration

if mediation fails to resolve conflict
 Arb-Med –
parties present case to arbitrator
who makes awary but keeps it secret while
parties try to resolve dispute through
mediation.
Minitrial –
discovery conducted for limited

period, exchange legal briefs &
memorandums of law & present cases before
third party neutral. Parties meet to settle
dispute. If cannot, third party issues non-
binding opinion. Parties can meet again to try
to settle.
 Summary jury trial
– put case before real jury
who renders non-binding decision.