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166 Cards in this Set
- Front
- Back
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two major roles played by law in the business world
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dispute resolution role
regulatory role |
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role in which the law gives people and business entities a forum to settle their differences
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dispute resolution role
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role in which law directs and standardizes activities that would otherwise be considered purely private interactions of individuals
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regulatory role
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the collection of rules and regulations that determines how the government will treat its citizens as well as how its citizens will treat the government and each other AND the enforcement there of
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law
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law derived from the US Constitution
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Constitutional Law
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another name for the Constitution
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the Supreme Law of the land
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legislative law, laws passed by Congress
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statutory law
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another name for laws passed by Congress
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statues
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president can create law by issuing
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executive orders
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the doctrine that states that previously decided cases should be followed unless there is a good, legal reason to change the previous decision
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stare decisis
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system in which judges rule based on what has been done before
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common law
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the established answer to a set of facts
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precedent
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courts try to interpret statutes according to . . .
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legislative intent
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established judicial review
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Marbury v. Madison
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-individual burned American flag
-charged with violating Texas law -Supreme Court said law was unconstitutional |
Texas v. Johnson
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the power to declare an act of Congress or the President unconstitutional
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judicial review
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Supreme Court declared Flag Protection Act of 1989 prohibiting the burning of the American flag unconstitutional
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United States v. Eichman
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the power of the state to place restraints on the personal freedom and property rights of persons for protection or the promotion of public convenience and prosperity
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police powers
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all laws developed under the authority of the Constitution by Congress, the President, or federal regulations
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federal law
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the controversy is based on rights and duties between litigants who are private parties
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private law
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concerns controversies between private parties and the government
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public law
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designed to prevent crime and punish criminals
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criminal law
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law that provides remedies for individuals or entities that have been wronged
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civil law
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laws that define rights and duties
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substantive laws
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laws that define the procedural means through which violations of rights and duties are remedied
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procedural laws
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an area of the law developed to avoid unjust results occurring from strictly following common law
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equity
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an action in equity such as an injunction
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equitable action
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involve the payment of money
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legal remedies
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involve a court order to do or not do something
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equitable remedies
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amendment giving states powers
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10th
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-farmer in Massachusetts
-land foreclosures -led armed attacks on the courthouses |
Shay's Rebellion
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collection of papers often used as a guide by the courts in interpreting the Constitution
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Federalist Papers
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those who supported the Constitution
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Federalists
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those who opposed the Constitution
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Anti-Federalists
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-immigration statute granted an administrative agency certain powers
-provision for a legislative veto that allowed either Senate OR House of Reps to veto it, no presidential veto -unconstitutional |
Immigration and Naturalization Service v. Chadha
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Supreme Court says they will hear a case
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writ of certiori
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most significant power of Congress to regulate business
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Commerce Clause
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-Supreme Court determined that the commerce clause allowed Congress to legislate interstate commerce
-New York steamboat monopoly |
Gibbons v. Ogden
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-Congress can regulate labor relations when a work stoppage would affect interstate commerce
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NLRB v. Jones & Laughlin
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-Court upheld congressional control of a farmer's production of wheat b/c MANY farmers could alter interstate commodity
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Wickard v. Filburn
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-Maryland attempted to tax national government
-denied |
McCulloch v. Maryland
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-Court created the doctrine of "separate but equal"
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Plessy v. Ferguson
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Texas utilized this to keep blacks from voting
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white primary
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-Texas white primary declared unconstitutional
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Smith v. Albright
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-Supreme Court overruled Plessy
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Brown v. Board of Education
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law passed by Congress to implement the decision in Brown v. BoE
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Civil Rights Act of 1964
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-motel in Atlanta
-whites only policy -interstate travel, found unconstitutional -commerce clause used |
Heart of Atlanta Motel v. United States
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-Ollie's Barbecue in Alabama
-no seating for blacks -cumulative effect of all restaurants engaging in this activity affected interstate commerce -unconstitutional |
Katzenbach v. McClung
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-high schooler with gun violating Gun-Free School Zones Act
-reversed law, unconstitutional -exceeded Congress's legislative power under commerce clause |
United States v. Lopez
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-Brady Handgun Violence Prevention Act
-Federal government requires chief law enforcement officer of each local jurisdiction to conduct background checks on handgun purchasers? -NO. unconstitutional |
Printz v. United States
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-legality of Violence Against Women Act
-Congress had exceeded constitutional bonds |
United States v. Morrison
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-feds seized medicinal marijuana
-Congress DID have authorization, all that is needed is "rational basis test" |
Gonzales v. Raich
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when both national and state governments can pass legislation
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concurrent powers
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when Congress chooses to act exclusively in an area
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preempt
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-Oklahoma had a law prohibiting residents from other states from bringing minnows into Oklahoma
-law declared unconstitutional; not much fishing in OK |
Hughes v. Oklahoma
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-Maine had a law prohibiting residents from other states from bringing in bait
-upheld b/c Maine depends on fishing |
Maine v. Taylor
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-question of which speech is protected; you can't shout fire in a theater
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Schenck v. United States
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-Congress can require law schools to provide equal access to military recruiters without violating the schools' freedom of speech
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Rumsfeld v. Forum for Academic and Institutional
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-distinguished between official and private speech
-when public employees make statements pursuant to their official duties, they are not protected |
Garcetti et. al. v. Ceballos
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speech that is afforded the greatest protection under the First Amendment
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political speech
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speech that is subject to regulation
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commercial speech
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-purely commercial speech is not protected by 1st amendment
-advertising |
Valentine v. Chrestensen
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-Supreme Court overruled Chrestensen
-declared state statute prohibiting pharmacists from advertising prices of prescription rugs to be an invalid restriction on speech -purely economic reason for speech does NOT remove it from constitutional protection |
Virginia State Board of Pharmacy v. Virginia Consumer Council
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-illustrates that the constitutional analysis is composed of a four-part test to determine whether a restriction on commercial speech unduly burdens the flow of info
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Central Hudson Gas and Electric Corp. v. Public Service Commission of New York
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-Court struck down a federal restriction against beer companies putting the alcohol content of the beer on their labels
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Rubin v. Coors Brewing Co
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-Supreme Court struck down a Massachusett's statute prohibiting corporate political speech
-there are still legitimate restrictions in business political speech though |
First National Bank of Boston v. Bellotti
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-Supreme Court upheld a Michigan law prohibiting corporations from using general corporate funds for independent expenditures in state political campaigns
-OKAY burden on free speech |
Austin v. Michigan Chamber of Commerce
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part of 1st amendment that protects individuals practice of religion
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free exercise clause
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part of 1st amendment that prohibits governmental establishment of an official religion
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establishment clause
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-County set up a manger scene
-sued by ACLU -Court said NO to manger scene, violation of the Establishment Clause |
County of Allegheny v. American Civil Liberties Union
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-Court allowed Ten Commandment display b/c it was among lots of historical markers surrounding capitol
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Van Orden v. Perry
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-Court did NOT allow Ten Commandments display b/c the other documents displayed highlighted references to religion and to Christ
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McCreary County, Kentucky, et. al. v. American Civil Liberties Union
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state or local laws which regulate the types of business activities that acn be conducted on Sunday
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Blue laws/ Sunday laws
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-Oregon law prohibited ingestion of peyote
-Court said that an employer who fired employees who violated this law, even during religious practices, was justified |
Employment Division, Department of Human Resources of the State of Oregon v. Smith
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prohibits the Federal Government from substantially burdening a person's exercise of religion except when the government can demonstrate that application of the burden to the person advances a compelling governmental interest
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Religious Freedom Restoration Act of 1993
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-Court ruled that the government did not demonstrate at the preliminary injunction stage a compelling interest in barring the church from sacramental use of hoasca
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Gonzales v. O Centro Espirita
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prohibits unreasonable search and seizure w/o a warrant
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4th Amendment
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holds that any evidence seized improperly must be excluded from trial
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Exclusionary Rule
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-Court held that police have the right to enter a home w/o a warrant when they reasonably believe that an occupant is seriously injured or imminently threatened with a serious injury
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Brigham City v. Stuart
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-Court threw out "knock and announce" rule
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Hudson v. Michigan
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-Court recognized that warrantless entry and search was valid when police obtained the voluntary consent of an occupant who shares the common area
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Georgia v. Randolph
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warrants required of inspection of business in regulatory situations
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administrative warrants
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no self-incrimination AND right to due process
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5th amendment
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guarantees due process by the state governments
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14th amendment
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involves the content or meat of the law of governmental action
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substantive due process
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applies when one reviews the steps the gov uses to deprive anyone of life, liberty, or property
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procedural due process
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the taking of private property by the gov
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eminent domain
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-Court affirmed city's authority to take condemned property (public use)
-reminded city that undue hardships could ensue to the people who did not want to sell -Court could enact stricter public use requirements than the minimum set forth by the courts ruling |
Kelo v. City of New London
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-state statute provided for compulsory sterilization of habitual criminals convicted of grand larceny
-no sterilization of criminals convicted of habitual embezzlement -law was found unconstitutional, no logical basis for distinguishing between these perpetrators |
Skinner v. Oklahoma
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-court struck down Alabama tax law that taxed non resident insurance companies at a higher rate
-nota legitimate state purpose |
Metropolitan Life Insurance Co. v. Ward
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-TX statute outlawing persons of the same sex engaging in certain sexual conduct was unconstitutional
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Lawrence v. Texas
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-state statute that decreased the value of state guaranteed bonds which had been sold before passage of the statute was UNconstitutional under contracts clause
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United States Trust Company of New York v. New Jersey
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-state law was unconstitutional under contracts clause b/c state regulation of private pension funds altered contractual obligations of employers
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Allied Structural Steel v. Spannaus
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with STRICT scrutiny of regulation (involving race or other big freedoms), this is needed
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compelling state interest
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no state shall ... deny to any person within its jurisdiction the equal protection of the laws". ...part of 14th amendment
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Equal Protection
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when the government uses property for a good reason
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public use
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with WEAK scrutiny of regulation, this is used
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rational basis test
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with MEDIUM scrutiny of regulation, such as with gender or legitimacy, this is used
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substantial governmental interest test
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-the "First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral."
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Board of Regents of the University of Wisconsin v. Southworth
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-Court held that such searches are valid if, at the time of the search, the authorities "reasonably believe" the third party possesses common authority over the premises.
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Illinois v. Rodriguez
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-Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives
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Griswold v. Connecticut
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supremacy clause is found n
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article vi clause 2
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commerce clause is found in
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article 1 section 8
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Court held that the President did not have the authority to issue an order to seize and operate steel mills
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Youngstown Sheet & Tube Co v. Sawyer
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the process by which lawsuit issues are resolved
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litigation
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lowest courts on the ladder
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trial courts
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higher rungs of the ladder courts
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appellate courts
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the appealing party
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appellant
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the non-appealing party
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appellee
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this occurs before the appeals court in which both parties have a limited time to orally persuade the judges
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oral argument
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several hundred of these courts in TX
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municipal
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created by TX constitution, same level as municipal court
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Justice of the Peace Court
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a statutory court, the peoples court, jurisdiction up to $10k
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small claims court
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a court at the same level of the county court
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county court at law
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basic trial court for the state of TX
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District court
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14 of these courts in TX
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Coruts of Appeals
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9 members, only one in TX (2 kinds)
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Court of Criminal Appeals
TX Supreme Court |
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general trial courts for the federal court sysstem
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Federal District Courts
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thirteen circuits, US wide
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Federal Courts of Appeal
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opinions issued by the panel of judges
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panel decision
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controversial cases heard by all members of the court of appeals in a given circuit, opinions referred to as
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en banc
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-white student denied admission to UT law
-claimed they were more qualified than minorities who were chosen -violated 14th amendment -damages of $1 -UT ordered not to use race as factor |
Hopwood v. Texas
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-university of michigan school of law
-admission policy met Bakke test |
Grutter v. Bollinger
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-similar university of michigan case
-minorities were given 20 points toward admission -court said not fair |
Gratz v. Bollinger
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-made the Bakke test, no quotas but student body diversity is a compelling interest
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Regents of University of California v. Bakke
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act giving supreme court almost total discretion of which cases will be accepted for review
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supreme court selections act
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rule of fours
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writ is issued whenever 4 justices vote to review the case
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hear cases involving administrative agencies
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administrative law judges
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two types of jurisdiction
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subject matter
territorial |
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federal district courts are empowerred to hear cases involving ...
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federal questions
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a secondary way to establish federal subject matter jurisdiction
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diversity of citizenship
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right of the feds to have a case removed to a federal court
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removal doctrine
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accomplished by serving the defendant physically with a summons/citation
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in personam jurisdiction
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state is given territorial jurisdiction over property located within that state and the property is the subject matter of the lawsuit
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in rem jurisdiction
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jurisdiction arises due to the ownership of property in another state but it is not the subject matter of the lawsuit
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quasi in rem jurisdiction
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the right of a defendant to be tried in a proper court within a specific geographic area
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venue
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trying to find a "good" jurisdiction
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forum shopping
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requirement that the case is tried in the proper court that is most convenient to all of the litigants
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forum non conveniens rule
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courts wont act until there is an actual controversy because we are in an ...
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adversarial system
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exceptions to the controversy requirement in the business world involve the issue of
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standing
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papers that are filed with the court
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pleadigns
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if the defendant does nothing, the plaintiff is entitle d to go to court and take a
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default judgment
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defendant must respond to a complaint/petition by filing an
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answer
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legal defenses that must be proven by the defendant
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affirmative defenses
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anything that would allow the defendant to be a plaintiff in an independent suit against the plaintiff
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counterclaim
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defendant can file a ... to bring a third party into the lawsuit
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cross-action
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pretrial process by which each party obtains info from the opposing party or some 3rd party
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discovery
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deposition can be used to
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impeach
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written questions which are served on teh opposing party
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interrogatories
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a written set of facts that one party requests the other to admit as being true
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request for admissions
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request that the other side produce certain requested documetns
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request for production
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if the plaintiff fails to sustain the burden of proof, the defendant may move for a
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directed verdict
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the courts technique for pushing the case toward settlement or forcing the parties to prepare for trial
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pretrial conferencd
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when the jury renders a verdict against the one who wanted the directed verdict; this party can request the court to enter a
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judgment notwithstanding the verdict /judgment n.o.v
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after verdict, losign party can file a
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motion for new trial
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when the appellate court sends the case back to the lower court
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remand
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3 alternatives to litigation
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negotiation
mediation arbitration |
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-decision concerning arbitration of private securities fraud claims arising under the Securities Exchange Act of 1934
-upheld Wilko v. Swan that the nonwaiver provisions of the Securities Act of 1933 prevented the mandatory arbitration of such claims |
Shearson/American Express, Inc. v McMahon
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request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror
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challenge for cause
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a statutory grant of jurisdiction to local courts over foreign ("foreign" meaning out-of-state) defendants
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long arm jurisdiction
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A defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.
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peremptory challenge
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A court order, direction, decree, or command to protect a person from further harassment
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protective order
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states that the deadline for removing a case from state court to federal court is 30 days from the day that any defendant receives a copy of notice of removal of a civil action or proceeding
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removal doctrine
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A custom whereby presidential appointments are confirmed only if there is no objection to them by the senators from the appointee's state
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senatorial courtesy
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the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body's exercise of its jurisdiction over that person
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substituted service
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A preliminary examination of a witness or a juror by a judge or counsel.
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voire dire
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