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316 Cards in this Set
- Front
- Back
- 3rd side (hint)
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What does law consist of |
Enforceable rules governing relationships among individuals and between individuals in a society |
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Jurisprudence |
Part of the study of law, involves learning about different schools of jurisprudential thought and discovering how the approaches to law characteristics of each school can affect judicial decision making. |
Part of the study of law.. Involves learning about... |
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Natural law |
System of moral and ethical principles that are inherent in human nature and that people can discover through the use of their natural intelligence, or reason |
Moral and ethical principles |
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According to Aristotle, natural law applies to.... |
Natural law applies universally to all humankind |
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Positive law- natural law is the |
Written law of any society at a particular point in time |
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Positivist school |
There is no such thing as "natural rights." Human rights exist solely because of laws. If the laws aren't enforced, anarchy will result. Whether a law is "bad" or "good" is irrelevant. The law is the law and must be obeyed until it is changed |
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Historical school |
Emphasizes the evolutionary process of law by focusing on the origin and history of the legal system |
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Legal realism |
Based on the idea that law is just one of the many institutions in society and that it is shaped by social forces and needs |
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Legal realism |
Based on the idea that law is just one of the many institutions in society and that it is shaped by social forces and needs |
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Sociological school |
Views law as a tool for promoting justice in society |
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Ethics |
The study of what constitutes right or wrong behavior |
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Constitution |
Set forth the general organization, powers, and limits of their respective governments |
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Article IV of the constitution is |
Supreme law of the land |
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Statutory law |
Law enacted by legislative bodies |
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Ordinances |
Law passed by a municipal or county governing units to govern matters not covered by federal or state laws |
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Uniform laws |
Model laws that the state may adopt |
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The uniform commercial code |
Deals with matters affecting commerce. Has been adopted by all 50 states, the District of Columbia, and the Virgin Islands |
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Administrative law |
Consists of the rules, orders, and decisions of administrative agencies |
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Administrative agency |
Federal, state, or local government agency established to perform a specific function |
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Executive agencies |
Within the cabinet department of the executive branch. Example: department of health and human services |
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Examples of independent regulatory agencies |
Federal trade commission and the securities and exchange commission |
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Agencies are also at what level |
The state and local level and are similar to their federal counterparts |
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Case law |
The doctrines and principles announced in cases. Governs all areas not covered by statutory law |
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Common law doctrine |
Rules of law announced in court decisions constitute another basic source of American law. |
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Because of our English roots, much of American law is based on... |
English common law |
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Common law |
Body of general rules that applied throughout the entire English realm |
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Remedies |
The legal means to enforce a right to redress a wrong |
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Courts of law |
Courts that awarded compensation |
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Courts of law |
Courts that awarded compensation |
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Examples of remedies at law |
Land, items of value, or money. |
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Monetary damages |
An amount given to a party whose legal interests have been injured |
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Courts of Equity |
Have the power to grant new and unique remedies |
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Remedies in Equity |
Specific performance and injunction |
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Legal and equitable remedies today |
A party today may ask for both monetary and equitable remedies in the same court |
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Precedent |
A decision that furnished an example or authority for deciding subsequent cases involving similar legal principles or facts |
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Reporters |
Cases are published or "reported" in these books, called reporters |
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Stare Decisis |
To stand on decided cases- deciding new cases with reference to former decision, or precedents |
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Stare Decisis |
To stand on decided cases- deciding new cases with reference to former decision, or precedents |
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Binding authority |
A case precedent, statute, or other source of law that a court must follow when deciding a case |
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Stare Decisis |
To stand on decided cases- deciding new cases with reference to former decision, or precedents |
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Binding authority |
A case precedent, statute, or other source of law that a court must follow when deciding a case |
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Sometimes courts will depart from the rule of precedents if it decides that the precedent should |
No longer be followed |
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Judges also have flexibility in |
Applying precedents |
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Cases of first impression |
Cases for which no precedents exist |
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Persuasive authority |
Precedents from other jurisdiction |
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Public policy |
Governmental policy based on widely held societal values |
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Legal reasoning |
Reasoning process used by judges in deciding what law applies to a given dispute and then applying that law to specific facts or circumstances of the case |
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Four basic steps in legal reasoning |
ISSUE, RULE, APPLICATION, and CONCLUSION |
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Forms of legal reasoning |
Deductive reasoning, linear reasoning, and reasoning by analogy |
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Forms of legal reasoning |
Deductive reasoning, linear reasoning, and reasoning by analogy |
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Deductive reasoning |
Sometimes called SYLLOGISM(a logical relationship involving major premise, a minor premise, and a conclusion |
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Forms of legal reasoning |
Deductive reasoning, linear reasoning, and reasoning by analogy |
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Deductive reasoning |
Sometimes called SYLLOGISM(a logical relationship involving major premise, a minor premise, and a conclusion |
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Linear reasoning |
It proceeds from one point to another, with the final point being the conclusion |
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Analogy |
Compare the facts of the case at hand to the facts in other cases |
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There is no One "Right" answer |
It depends. |
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The continuing importance of the common law |
Courts interpret statutory law in common law/case law |
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The continuing importance of the common law |
Courts interpret statutory law in common law/case law |
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Restatement of the law |
Drafts and published compilations of the common law |
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Substantive law |
Laws that define, describe, regulate, and create legal rights and obligations |
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Procedural law |
Consists of all laws that delineate the methods of enforcing the rights established by substantive law |
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Civil law |
Spells out the rights and duties that exist between persons and between persons and their governments |
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Civil law |
Spells out the rights and duties that exist between persons and between persons and their governments |
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Criminal law |
Concerned with wrongs committed against the public |
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Cyberlaw |
Emerging body of law that governs transactions conducted over the internet |
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Citation |
A reference to a publication in which a legal authority- such as a statute or a court decision or other source can be found |
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United States code |
Arranges all existing federal laws by broad subject |
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State codes |
Follow the U.S.C. pattern of arranging law by subject |
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State codes |
Follow the U.S.C. pattern of arranging law by subject |
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State codes can be called |
Codes, revisions, complications, general statutes |
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Administrative rules |
Become CFRs and are divided into 50 titles |
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Administrative rules |
Become CFRs and are divided into 50 titles |
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State court decisions |
Generally state appellate and Supreme Court cases are published |
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Regional reporters |
West Group publishes opinions by regions |
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Regional reporters |
West Group publishes opinions by regions |
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Case citations parts |
Name of the case, volume of reporter, name of the reporter, and page number of the reporter |
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Case title |
Title of the case generally refers to the parties of the case |
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Parties to lawsuits |
Plaintiff, defendant, appellant, and appellee |
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Parties to lawsuits |
Plaintiff, defendant, appellant, and appellee |
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Plaintiff |
Brings the suit |
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Parties to lawsuits |
Plaintiff, defendant, appellant, and appellee |
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Plaintiff |
Brings the suit |
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Defendant |
The person who is sued |
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Appellant |
Person bringing the appeal |
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Appellant |
Person bringing the appeal |
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Appellee |
Person responding to the appeal |
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Judge |
Trail court |
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Justices |
Court of Appeals, and Supreme Court |
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Decisions and opinions |
Decision (what was decided) Opinion(explanation of the decision) |
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Ethics |
The study of what constitutes right or wrong behavior |
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Business ethics |
Focuses on what is right and wrong behavior in the business world |
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All you have at the end of the day is... |
Your name |
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Moral minimum |
Normally considered to be compliance with the law |
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Note: |
Just because an action is legal, doesn't make it ethical |
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Short run profit maximization |
Not always good if you have to act unethical. Long run profits will decrease if you act unethically. |
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Top management needs to be |
The example for the company |
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Top management needs to be |
The example for the company |
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You don't want to set unreasonable goals |
Will lead to employees taking shortcuts |
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Ethics training for employees |
Most large companies implement ethics training programs in which managers discuss face to face with employees. Teach importance of ethical conduct and the firm's policies |
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Sarbanes-Oxley act |
Requires companies to set up confidential systems so that employees and others can raise red flags about suspected illegal or unethical auditing and accounting practices. |
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Stock Buyback |
Management of a corporation believes the market price of its shares is below their fair value. Management uses the company's funds to buy its shares in the open market, thereby boosting the price of the stock |
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Ethical reasoning |
Individual examines the situation at hand in light of his or her moral convictions or ethical standards |
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Kantian ethics |
Duty based ethics |
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Kantian ethics |
Duty based ethics |
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Categorical imperative |
If you cheat, then everyone will cheat and education would be meaningless |
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Principal of rights/ rights theory |
A key factor in determining if a business decision is ethical is how that decision affects the rights of others |
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Utilitarianism |
Focuses on the consequences of an action, not on the nature of the action itself or on any set of pre-established moral values or religious beliefs |
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Corporate social responsibility |
Idea that those who run corporations can and should act ethically and be accountable to society for their actions |
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Corporate social responsibility |
Idea that those who run corporations can and should act ethically and be accountable to society for their actions |
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Stakeholder approach |
A corporation should consider the impact of its decisions on the firm's employees, customers, creditors, suppliers, and the community in which the corporation resides |
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Corporate citizenship |
Corporations should behave as good citizens by promoting goals that society deems worthwhile and taking positive steps toward solving social problems |
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Six guidelines to making ethical business decisions |
The law, rules and procedures, values, conscience, promises, and heroes |
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Six guidelines to making ethical business decisions |
The law, rules and procedures, values, conscience, promises, and heroes |
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Practical solutions to corporate ethics questions - business process pragmatism |
Inquiry, discussion, decision, justification, and evaluation |
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Most US businesses today usually take steps to avoid |
Adverse publicity |
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Foreign corrupt practices act |
Prohibits US business persons from bribing foreign officials |
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Foreign corrupt practices act |
Prohibits US business persons from bribing foreign officials |
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Prohibition against the bribery of foreign officials applies to |
US companies and their agents |
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Bribes can be concealed in |
Corporate financial records |
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Bribes can be concealed in |
Corporate financial records |
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All companies must keep records that |
Accurately and fairly reflect their financial record |
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Penalty for bribing foreign officials |
May be fined up to 2 million dollars. Individuals can be fined up to 100k and get up to 5 years in prison |
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The judiciary's role in American government |
Law would be meaningless without courts to interpret and apply them |
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The judiciary's role in American government |
Law would be meaningless without courts to interpret and apply them |
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Judicial review |
The judiciary can decide whether the laws or actions of the two branches are constitutional |
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The judiciary's role in American government |
Law would be meaningless without courts to interpret and apply them |
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Judicial review |
The judiciary can decide whether the laws or actions of the two branches are constitutional |
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Which case does Judicial Review come from |
Marbury v Madison |
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Jurisdiction |
The power to speak the law |
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Persona jurisdiction- personal jurisdiction |
Jurisdiction over a person who resides in a certain geographic area |
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Rem jurisdiction |
Jurisdiction over the thing. Where the "thing" is located |
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Long arm statutes |
A court may exercise jurisdiction over certain out of state defendants based on activities that took place within the state |
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Corporations are considered |
Legal persons |
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Minimum contacts |
Such activities that will hail the party into court |
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General jurisdiction |
Courts that can decide cases involving a broad array of issues |
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Limited jurisdiction |
Court that can hear only certain issues. Examples: probate courts and bankruptcy court |
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Court of original jurisdiction |
Law suites begin, trail takes place, and evidence is presented |
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Court of appeals |
Reviewing courts |
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Federal question |
A question involving federal law |
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Diversity of jurisdiction |
Plaintiff and defendant must be residents of different states and the dollar amount must exceed 75k |
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The sliding scale standard - three types of business contacts |
Substantial business conducted over the Internet, some interactivity through a website, and passive advertising |
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International jurisdictional issues |
People not knowing which jurisdiction they are in |
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Standing |
Sufficient stake in a matter to justify seeking relief through the court system |
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Justiciable controversy |
A controversy that is real and substantial, as opposed to hypothetical or academic |
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Levels of the state court system |
Local trial courts with limited jurisdiction, state trial courts of general jurisdiction, state courts of appeals, and the states highest court (Supreme Court) |
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Small claims courts |
Inferior courts that hear only civil cases involving claims of less than a certain amount such as $5,000 |
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What does every state have |
At least one court of appeals |
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Question of fact |
Deals with what really happened in regard to the dispute being tried |
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Question of fact |
Deals with what really happened in regard to the dispute being tried |
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Highest state court, usually called the Supreme Court, decide questions of |
State law and are final |
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The federal court system three tiered model |
US district courts, US court of appeals, and the US Supreme Court |
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US district court |
Similar to the state trial court |
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US district court |
Similar to the state trial court |
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US court of appeals- US circuit court of appeals |
13 circuits. Georgia is the 11th |
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Writ of certiorari |
You must request the Supreme Court to hear your case. If they agree to hear the case, they issue this writ |
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Rule of 4 (Supreme Court) |
At least 4/9 justices must want to hear the case |
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American and English courts follow the |
Adversarial system of justice |
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Federal rules of civil procedure |
Provide a framework for every dispute, specify what must be done at each stage of the litigation process, and each court has its own set of rules that must be followed |
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An attorney will generally |
Let you know what will happen in a lawsuit, tell you about the procedures involved, and tell you about the legal fees involved such as hourly rate, flat fee, contingency fee, hybrid, and expenses in the lawsuit |
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Pleadings (complaint and answer)- |
Inform each party of the other's claims and specify the issues involved in the case |
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The plaintiffs complaint shows the court |
That it has jurisdiction, shows the facts of the case, and remedy the plaintiff is seeking |
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Service of process |
Notifying the defendant of a lawsuit |
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Service of process |
Notifying the defendant of a lawsuit |
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Summons |
Notice requiring the defendant to appear in court and answer the complaint |
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Service of process |
Notifying the defendant of a lawsuit |
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Summons |
Notice requiring the defendant to appear in court and answer the complaint |
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Default judgement |
Must answer the complain in x number of days or suffer a default judgement, meaning the plaintiff wins |
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Under the federal rules, |
Anyone who is at least 18 and is not a party to lawsuit can serve process in federal court cases |
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In state court, the process server is often a |
County sheriff or an employee of an independent company that provides process service in the local area |
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In state court, the process server is often a |
County sheriff or an employee of an independent company that provides process service in the local area |
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Process can be done by |
Leaving with the defendant, mail if the defendant consents, and get in touch with the corporation's registered agent |
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In state court, the process server is often a |
County sheriff or an employee of an independent company that provides process service in the local area |
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Process can be done by |
Leaving with the defendant, mail if the defendant consents, and get in touch with the corporation's registered agent |
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A way process can be done if the defendant is not available |
Publish a notice in the local paper and via email in certain circumstances |
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In state court, the process server is often a |
County sheriff or an employee of an independent company that provides process service in the local area |
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Process can be done by |
Leaving with the defendant, mail if the defendant consents, and get in touch with the corporation's registered agent |
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A way process can be done if the defendant is not available |
Publish a notice in the local paper and via email in certain circumstances |
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Waiver of formal service of process |
Defendant's may give up their right to be served personally. Mail the complaint and summons with a waiver, if the defendant signs it, service has been waived |
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Affirmative defenses |
Raise facts to show that the defendant shouldn't be liable for damages |
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Counterclaim |
Set forth the defendant's claim that the matter occurred as a result of the plaintiff's actions |
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Motion |
Procedural request submitted to the court by an attorney on behalf of their client |
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Motion for judgement on the pleadings |
Asks the court to decide the issue solely on the pleadings without proceeding to trial |
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Motion for summary judgement |
Will be granted only if the evidence, when viewed in the light most favorable to the party, clearly shows no factual disputes in contention |
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Motion for summary judgement |
Will be granted only if the evidence, when viewed in the light most favorable to the party, clearly shows no factual disputes in contention |
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Affidavits |
Sworn statements by parties or witnesses |
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Discovery |
Gaining access to witness, documents, records, and other types of evidence |
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Discovery |
Gaining access to witness, documents, records, and other types of evidence |
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Disposition |
Sworn testimony by a party to the lawsuit of by any other witnesses, recorded by an authorized court official |
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Desposition |
Sworn testimony by a party to the lawsuit of by any other witnesses, recorded by an authorized court official |
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Interrogatories |
Written questions for which written answers are prepared and then signed under oath |
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Requests for admissions |
Written request for an admission of the truth of the matters relating to the trial |
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Even electronic information can be the object of |
A discovery request |
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Pre-trial conference |
Informal discussion between the judge and the opposing attorneys after discovery has taken place. Explores the possibility of settlement without trial |
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7th amendment guarantees |
The right to a jury trial. Doesn't have to be exercised. If there isn't jury, the judge determined the truth of the facts alleged in the case |
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Voir dire |
Attorneys ask questions of perspective jurors to check for bias |
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Peremptory challenge |
Dismissing the juror without a reason. Limited in number |
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Peremptory challenge |
Dismissing the juror without a reason. Limited in number |
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Cause |
Provide a reason why the juror should be removed |
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Opening statements |
Sets forth the facts that they expect to prove during the trial. Each lawyer has the opportunity to give a brief version of the facts and the supporting evidence that will be used during trial. |
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Rules of evidence |
Rules created by the courts to ensure that any evidence presented during the trial is fair |
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Rules of evidence |
Rules created by the courts to ensure that any evidence presented during the trial is fair |
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Hearsay |
Any testimony given in court about a statement made by someone else who was not under oath at the time of the statement. It is no admissible. |
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Direct examination |
Initial questioning of the witness |
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Cross examination |
Opposing counsel's opportunity to ask questions of the witness |
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Rebuttal |
After the defendant's attorney has finished presenting evidence, the plaintiff's attorney may present evidence for rebuttal. |
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Rejoinder |
The defendant's ability to refute that evidence |
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Closing argument |
Each attorney summarizes the facts and evidence presented during the trial and indicates why the facts and evidence support his or her client's claim |
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Jury instruction |
Instructs the jury in the law that applies to the case |
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Verdict |
Specifies the jury's factual findings |
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Motion for judgement NOV(not withstanding the verdict) |
Granted only if the jury's verdict was unreasonable |
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Brief |
Formal legal document outlining the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and arguments. |
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Enforcing the judgement- writ of execution |
Order directing the sheriff to seize and sell the defendant's non-exempt assets or property. Profits from the sale of those items will go to pay the judgement. |
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We can fix the problem of congestion in our court system by |
Caps on judgements, unable to file frivolous lawsuits, and mandatory arbitration or mediation |
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Our policy makers want to |
Cut costs and reduce delay in federal court |
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Alternative dispute resolution |
Procedure for resolving disputes outside the traditional judicial process |
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Alternative dispute resolution |
Procedure for resolving disputes outside the traditional judicial process |
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Negotiation |
Parties come together informally, with or without attorneys to try to reach a settlement |
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Preparation for negotiation |
Need to consider the elements of the dispute and have all your paperwork ready to go |
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Preparation for negotiation |
Need to consider the elements of the dispute and have all your paperwork ready to go |
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Assisted negotiation |
Involves the assistance of the third party |
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Mini-trial |
Private proceeding in which each party's attorney briefly argues the party's case before the other party. |
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Early neutral case evaluation |
Parties select a neutral third party to evaluate their respective positions. Points out strengths and weaknesses. |
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Early neutral case evaluation |
Parties select a neutral third party to evaluate their respective positions. Points out strengths and weaknesses. |
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Facilitation |
Facilitator schedules negotiation sessions and carries offers back and forth between the parties when they refuse direct negotiation with each other |
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Mediation |
A third party (mediator) works with both sides in the dispute to find a resolution. Mediators talk with the parties separately and at the same time. Emphasizing points of agreement |
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Advantage of mediator |
Few procedural rules involved, mediator can have a binding resolution, and the mediator is selected by the parties |
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Disadvantage of mediator |
Mediator charges a fee and people are less willing to cooperate |
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Arbitration |
Formal method of ADR. An arbitrator is a neutral third party or a panel of experts. |
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Third party's decisions may be |
Legally binding on the parties |
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The federal arbitration act |
Doesn't establish a set of arbitration procedure. The parties may agree to have the arbitrators decision to be confirmed by the federal district court |
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Virtually all of the states follow the |
Federal approach to voluntary arbitration |
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Submission |
The act of referring a dispute to an arbitrator. It identifies the parties and most states require it to be in writing |
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Hearing |
The evidence and arguments are presented to the arbitrator. Parties to must state the issues that will be submitted and the powers that the arbitrator will exercise. |
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Hearing |
The evidence and arguments are presented to the arbitrator. Parties to must state the issues that will be submitted and the powers that the arbitrator will exercise. |
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Award |
The final decision of the arbitrator(not money) |
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The issue of arbitrability |
One party will have to file suit to compel arbitration, the agreement to arbitrate must be explicit, and the arbitration agreement can limit the types of disputes that the parties agree to arbitrate. |
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The issue of arbitrability |
One party will have to file suit to compel arbitration, the agreement to arbitrate must be explicit, and the arbitration agreement can limit the types of disputes that the parties agree to arbitrate. |
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Courts have held that mandatory arbitration agreements in employment contracts are |
Generally enforceable |
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Generally the findings of the arbitrator are |
Binding. The parties have freely contracted to the arbitration. The parties should be bound by the terms of that contract |
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Public policy and illegality |
No award will be enforced if it would result in the commission of a crime or would conflict with some greater social policy mandated by statute |
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Waiver |
Sometimes a party forfeits the right to challenge an award by failing to object to the defect in a timely manner |
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Disadvantages of arbitration |
Unpredictable, can be as expensive as litigation, and discovery is generally not available |
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Certain actions may not go to arbitration such as |
Title to real estate and equity issues |
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Difference between voluntary and court annexed arbitration |
Then finality and reviewability of the award |
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Difference between voluntary and court annexed arbitration |
Then finality and reviewability of the award |
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Which rules apply during court annexed arbitration |
Depends on the state |
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Waiver |
Once a court directs that a dispute is to be submitted to a court annexed arbitration, the parties must proceed to arbitration. If they fail to appear, it constitutes a waiver of the right to reject the award. |
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Court related mediation is used in |
Business and is becoming more and more popular |
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Court related mediation is used in |
Business and is becoming more and more popular |
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Summary jury trial |
A mock trial that occurs in a court room before a judge and jury. At this level, the jury's verdict is only advisory |
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Nonprofit organizations |
American arbitration association (AAA). They still charge a fee for their services. For profit organizations such as JAMS/Endispute(leading firm in this private system of justice). Profit organizations are usually quicker as well. |
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Online dispute resolutions commonly involve |
Disagreements of the rights to domain names |
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Online dispute resolutions commonly involve |
Disagreements of the rights to domain names |
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Negotiation and mediation services |
Generally simpler and more practical than litigation. It is all done online. |
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AAA also offers |
Online arbitration programs |
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International dispute resolution- form selection and choice of law clauses |
Designate the jurisdiction in which the dispute arising under the contract will be litigated and the nation's law that will be applied |
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International dispute resolution- form selection and choice of law clauses |
Designate the jurisdiction in which the dispute arising under the contract will be litigated and the nation's law that will be applied |
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Arbitration clauses |
Usually have this clause in international contracts |
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Constitution reflects |
A series of compromises made by the convention delegates on various issues |
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Constitution reflects |
A series of compromises made by the convention delegates on various issues |
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Federal form of government |
National government and the states share sovereign power |
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Police powers |
State regulatory powers. Refers to the broad right of state governments to regulate private activities to protect and promote the public order, health, safety, morals, and general welfare |
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Police powers |
State regulatory powers. Refers to the broad right of state governments to regulate private activities to protect and promote the public order, health, safety, morals, and general welfare |
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Delineating state and national powers |
Generally, it is the task of the court to determine where the boundary line between state and national powers should be |
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The privileges and immunities clause |
Prevents a state from imposing unreasonable burdens on citizens of another state. The idea is to prevent any state from discriminating against citizens of other states in favor of its own. |
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The full faith and credit clause |
Applies only to civil matters. Ensures that rights established under deeds, wills, contracts, and similar instruments in one state will be honored in another state. It has contributed to the unity of the American citizens because it protects their legal rights as they move about from state to state |
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Checks and balances |
Each branch can limit the actions of the other two branches |
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The commerce clause |
Has had the greatest impact on business than any other provision in the constitution. |
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Commerce within the states could be regulated by |
The national government as long as the commerce sustainability affected commerce involving more than one state |
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The expansion of national powers under the commerce clause |
The power of the commerce clause grew. If it is interstate commerce that feels the pinch, it doesn't matter how local the operation that applies the squeeze |
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The commerce power today |
The commerce clause permits the national government to legislate in areas in which congress has not explicitly been granted power. The Supreme Court strook down the ban on guns within 1000 feet of any school because the act attempted to regulate an area that had nothing to do with commerce. |
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State action and the "dormant" commerce clause |
The dormant commerce clause comes into play when state regulations impinge on interstate commerce |
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State action and the "Dormant" commerce clause |
States can't regulate the length of trucks that travel through the state. States can not create laws that influence alcohol in their state. |
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State action and the "Dormant" commerce clause |
States can't regulate the length of trucks that travel through the state. States can not create laws that influence alcohol in their state. |
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Supremacy clause |
Provides that the constitution, laws, and treaties of the US are the supreme law of the land |
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State action and the "Dormant" commerce clause |
States can't regulate the length of trucks that travel through the state. States can not create laws that influence alcohol in their state. |
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Supremacy clause |
Provides that the constitution, laws, and treaties of the US are the supreme law of the land |
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Preemption |
Occurs when congress choose to act exclusively in an area in which the federal government and the states have concurrent powers |
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Federal law |
Takes precedence over state law |
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Federal law |
Takes precedence over state law |
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The taxing and spending powers |
Congress has the power to lay and collect taxes. Today if a tax measure is reasonable, it is generally held to be within the national taxing power |
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Bill of rights |
Adopted in 1791. Embody a series of protections for individual against various types of interference by the federal government- The first 10 amendments. |
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Bill of rights |
Adopted in 1791. Embody a series of protections for individual against various types of interference by the federal government- The first 10 amendments. |
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Bill of rights limits on both federal and state government actions |
Originally this limited ONLY the power of the federal government. The 14th amendment has been incorporated most of these rights to apply to the states. |
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Freedom of speech |
A democratic form of government cannot survive unless people can freely voice their political opinions and criticize government actions or policies |
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Freedom of speech |
A democratic form of government cannot survive unless people can freely voice their political opinions and criticize government actions or policies |
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Symbolic speech |
Gestures, movements, articles of clothing, and other forms of expressive conduct |
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Reasonable restrictions to freedom of speech |
A balance must be struck between a government's obligation to protect its citizens and those citizens' exercise of their rights. Schools may restrict students' free speech rights at school events |
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Corporate political speech |
The court has held that a law forbidding a corporation from placing inserts in its billing to express its views on controversial issues violates the 1st amendment |
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Corporate political speech |
The court has held that a law forbidding a corporation from placing inserts in its billing to express its views on controversial issues violates the 1st amendment |
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Commercial speech |
Restrictions on commercial speech will be considered valid as long as it meets 3 criteria.. Must seek to implement a substantial government interest, it must directly advance that interest, and must go no further than necessary to accomplish its objective |
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Obscene speech |
The first amendment does not protect obscene speech. Material is obscene if: The average person finds that it violates contemporary community standards, the takeaway from the side appeals to the arousing or obsessive interest in sex, the work shows patiently offensive sexual conduct, and the work lacks serious redeeming literary, artistic, political, or scientific merit |
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Portions of the communicants decency act |
Have been held unconstitutional |
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Child online protection act |
Held to violate the right of free speech and prevented the enforcement of the act |
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Filtering software |
Software that keeps children from accessing adult content |
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Filtering software |
Software that keeps children from accessing adult content |
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Meta Tags |
Key words associated with a website |
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Filtering software |
Software that keeps children from accessing adult content |
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Meta Tags |
Key words associated with a website |
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Establishment clause |
Has to do with the separation of church and state. Prohibits the government from establishing a state-sponsored religion, as well as passing laws that show a preference for one religion over another. |
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Filtering software |
Software that keeps children from accessing adult content |
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Meta Tags |
Key words associated with a website |
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Establishment clause |
Has to do with the separation of church and state. Prohibits the government from establishing a state-sponsored religion, as well as passing laws that show a preference for one religion over another. |
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Free exercise clause |
No person can be compelled to do something that is against their religious beliefs. When religious practices work against public policy and the public welfare, the government can act. |
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Searches and seizures in the business context |
Constitutional protect is important to business and professionals. The government also has an interest in ensuring compliance with federal and state regulations, especially rules meant to protect the safety of employees and the public. The standard of probable cause is NOT the same as required in non-business activities |
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Self-incrimination |
No person shall be compelled to be a witness against themselves |
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Due process clause |
No person shall be deprived of life, liberty, or property, without due process law |
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Due process clause |
No person shall be deprived of life, liberty, or property, without due process law |
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Procedural due process |
Requires that any government decision to take life, liberty, or property must be made equitably. The government must give a person proper notice and a hearing |
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Substantive due process |
Protects an individual's life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them |
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Equal protection clause |
The government cannot enact laws that treat similarly situated individuals differently |
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Strict scrutiny |
Classification must be necessary to promote a compelling state interest: fundamental rights, race, and national origin. |
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Strict scrutiny |
Classification must be necessary to promote a compelling state interest: fundamental rights, race, and national origin. |
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Intermediate scrutiny |
Classification must be substantially related to an important government interest: gender and legitimacy. |
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Rational basis test |
Classification will be considered valid if there is any conceivable rational basis for a legitimate government interest: everything else. |
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Federal statutes affecting privacy rights |
Medical information (HIPPA- protects the privacy of individuals' health records) and the patriot act. The patriot act gives government officials increased authority to monitor internet activities and to gain access to personal financial information and student information |
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