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177 Cards in this Set
- Front
- Back
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CHAPTER 1 CONSTITUTIONAL LAW |
LALALALALA |
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________ Powers: Federal form of government
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Constitutional
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Relations Among States
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prevents state from imposing unreasonable burdens on citizens particularly with regard to basic essential activities
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privileges and immunities clause |
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full faith and credit clause |
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Separation of the National Government's powers
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"[The Congress shall have power] To regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes" What is this? Where is this found? |
The commerce Clause in the US constitution |
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Power to regulate interstate commerce defined in ______v.______(_____) activities that "substantially affect interstate commerce |
Gibbons v. Ogden |
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Gibbons v. Ogden |
power to regulate interstate commerce |
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In 1942, Supreme court expanded commerce clause to not just purely interstate business but also interstate What court Case? |
Wickard v. Filburn |
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In 1964, Supreme court prohibited racial discrimination in interstate commerce What court case? |
Atlanta Motel v. u.s |
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Commerce Clause Today National government can regulate virtually any business, including those that are______- based |
internet |
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Commerce Clause Today From ____ in 1942 and 1055 the courts did not find that congress overstepped bounds of commerce clause until ______v______. It is a _____ ____ that by its terms has nothing to do with "_____" |
Wickard US v Lopez Gun Free School Zone criminal statue commerce |
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__________- substantial effect on economy |
commerce clause |
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The "____" commerce Clause
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Dormant substantially affects struck down |
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________Examples 1. Jane uses old pallets to make wine racks. Congress bans the use of old board to promote timber industry 2. School uniforms in college make students learn more and thus become more productive after college. Congress passes a statue requiring school uniforms in college? |
Commerce Clause Examples |
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A Valid federal statue or regulation will take precedence over a conflicting state or local statue |
Supremacy Clause |
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_______ occurs when congress chooses to act exclusively when national and state governments have concurrent powers |
preemption |
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Article 1 Section 8: Congress has the power to lay and collect ____, ______, ______, and Excises" which shall be "______" among the states Expansion of commerce clause giving ______ power as well |
Taxing and Spending Powers Taxes, Duties, Imposts uniform taxing |
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Bill of rights apply to natural persons and _____ apply to business entities as well |
most |
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Limits on Federal and State Government Actions 1. Bill of rights was originally intended as a limit on ______ ______ ______ 2. Today, Bill of Rights is applied to states via "____ ____" clause of the ____th amendment 3. Rights are not _____ |
1. national government powers 2.due process, 14th amendment 3. absolute |
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Freedom of Speech 1. Affordable highest protection by courts 2. S________ Speech 3. _______ Restrictions 4. C_____ and P______ Speech 5. C_____ Speech 5. U____ Speech |
1. Affordable highest protection by courts 2. Symbolic Speech 3. Reasonable Restrictions 4. Corporate Political Speech 5. Commercial Speech 6. Unprotected Speech |
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________ Speech Texas v. _____ (1989) the "_____ ______" case |
Texas v. Johnson (1989), the "flag burning" case Symbolic Speech |
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Reasonable Restricts of Freedom of Speech 1. Balance must be struck between a government's obligation to ___________ vs. a citizen's ______ 2. Compelling government _____ to restrict fundamental right |
1. governments obligation to protect its citizens vs. a citizens right to speech
2. Compelling government interest to restrict fundamental right |
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Courts give substantial protection to commercial speech (_______) Restrictions must:
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(Advertising)
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Certain types of speech are not protected by the first amendment Examples:
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1. Slander 2. Fighting Words 3. Pornography |
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First amendment may not "_____" religion or prohibit the "________" of religion 1. The _______ Clause 2. The ______ Clase 3. Employers must reasonably accomodate beliefs as long as employee has sincerely_____ ______ and not an ______ ______ 4. To prove ____ ______, the employer will need to demonstrate how much cost or disruption a proposed accommodation would involve (____ and _____) |
"Establish", "free excercise" 1. Establishment 2. Exercise 3. sincerely held beliefs and not an undue hardship 4. undue hardship (direct, indirect) |
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The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable clause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
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4th Amendment |
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The ______ amendment requires search warrants to have _____ ___
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4TH AMENDMENT PROBABLE CAUSE |
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Searches and seizures in Business Context: Generally business inspectors must have a _____ However, a warrantless search is permissible for seizure of _____ or ______ ____ and high _______ _________ |
warrant spoiled or contaminated food and highly regulated industries |
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The _______ amendment guarantees no person can be compelled to testify himself in a criminal proceeding DOES NOT APPLY TO ______ OR _______ |
5TH AMENDMENT COORPERATIONS OR PARTNERSHIPS |
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___th and __th Amendments provide "no person shall be deprived of life, liberty, or property without ____ _____ of ____" |
5th and 14th due process of law |
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DUE PROCESS 1. ______ ISSUES 2. ______ ISSUES |
1. procedural 2. Substantive |
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1. Procedures depriving an individual of her rights must be fair and equitable 2. constitution requires adequate notice and a fair and impartial hearing before a disinterested magistrate |
Procedural Due Process |
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1. Focuses on content or substance of legislation 2. Laws limiting fundamental rights (speech, privacy, religion) must have a "compelling state interest" 3. Laws limiting non-fundamental rights require a rational basis |
Substantive Due Process |
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Equal Protection 1. SST 2. IS 3. RBT |
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Strict scrutiny Test |
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Intermediate Scrutiny |
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Rational Basis Test |
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Privacy Rights
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Federal Statues Affecting Privacy Rights 1. "_______" for financial information is illegal under G_____-L_____-B____ 2. Privacy Act of _____ 3. ______ Act of 1996 4. USA ______ ACT of 2001 |
1. "Pretexting" Gramm-Leac-Billiey 2. 1974 3. HIPPA 4. PATRIOT ACT |
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Chapter 6 Administrative Law |
Administrative Law |
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Examples of administrative law programs |
Federal Trade commission FCC FDA |
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Agencies provide comprehensive regulatory scheme -Many businesses have incentive to ______ the regulatory environment Examples: l_____ trying to influence agnecies |
influence Lobbyists |
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Agency Creation and powers 1. E_____ L_____ (legislation passed by congress) 2. The Types of Agencies 3. Agency powers within the confines of the ______ |
1. Enabling Legislation 3. constitution |
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Enabling Legislation __ ___ ____ (FTC) granted power to:
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1. rules and regulations 2. investigations 3. interstate 4. antitrust statues 5. findings 6. legislation 7. disputes |
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Types of agencies 1. 2. |
1. Executive Agencies 2. Independent regulatory agencies |
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_______ Agency -EPA and Cabinet level |
Executive Agency |
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______ Agency -SEC and IRS |
Independent Regulatory Agency |
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Act as legally binding laws passed by congress |
Legislative Rules |
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-Agencies also pass _______ rules |
interpretive |
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What authorizes congress the power through the constitution to create agencies |
The Delegation Doctrine |
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Executive Controls? |
Presidential Veto power |
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Judicial Controls _____ doctrine Party seeking court review must first exhaust all administrative remedies before filing a suit |
Exhaustion Doctrine
Basically you must go through administrative processes before going to court |
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Judicial Controls Court will not review administrative decision until it is 'ripe for review' |
Ripeness Doctrine |
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Agency Powers and The constitution 1. L_____Rules 2. D_______ Doctrine 3. E______ Controls 4. Judicial Controls
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1. Legislative Rules 2. Delegation Doctrine 3. Executive Controls 4. Judicial Controls -Exhaustion Doctrine -Ripeness Doctrine |
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Administrative Procedure Act In the absence of clear Congressional direction, all federal agencies must follow APA procedural requirements in _____, ______ and ______ |
notice rule-making adjunction |
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The Administrative Procedure Act gives courts power to hold agencies' actions "arbitrary and capricious" if they are not in compliance with constitutional due process |
Arbitrary and Capricious Test |
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Administrative Procedure Act Steps of Rule-making: Forming of new regulation 1.n 2.c 3.f |
1. Notice of the Proposed rule 2. Command Period 3. The Final Rule |
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Exempt from Administrative Procedure Act (APA) ______ _____ ____ |
Informal Agency Action |
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Judicial Deference to Agency Decisions
1. 2. |
Interpretation law Two prong test
-----If the state is silent, was the agency's interpretation of the law reasonable? |
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Two Prong test 1. Did Congress ______ _____ _____ _____ in a state? 2. If the statue is silent, was the agency's _______ of the law "_______"? |
1. Did Congress directly address the issue in a state? 2. If the statue is silent, was the agency's interpretation of the law "reasonable" |
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Courts will give Chevron deference to agency interpretation WHEN... |
THE MEANING OF A SATUE'S LANGUAGE IS UNCLEAR courts must follow agency interpretation if reasonable |
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Agency Enforcement and Adjudicatoin Investigation includes the powers to: 1. Conduct ______ 2. Issue _____ 3. Conduct site inspections (including _______ inspections in certain limited situations such as ______ or _____) |
1. Conduct inspections 2. Issue subpoenas 3. Conduct site inspections (including warrantless inspections in certain limited situations such as firearms or liquor) |
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Requiring someone to produce records |
subpoenas |
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Adjunction (like before a trial) 1. N_____ S_____ 2. F______ C______ 3. Role of the A______ L____ J___ 4. H_____ P______ 5. A_____ O_____ |
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A number of pieces of legislation make agencies more accountable through _____ _____ |
public scrutiny |
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Public Accountability 1. F____ of i_____ act 2. Government in the _____ Act 3. Regulatory F____ Act 4. Small business ____ _____ act |
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______ of ______ Act -Requires federal government to disclose records on request, but denial can be challenged in court |
Freedom of information Act |
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Freedom of Information Act Case 6.3 United Technologies Corp. v. U.S. Department of Defense (2010) -Court ordered _____ _____ between ____ and ______ to ____ |
rational connection facts and choice to deny |
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Requires that "every portion of every meeting of an agency be "open to public observation" |
Government In the sunshine Act |
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Government in the sunshine act -adequate _____ of ____ must be given to the public -Closed meetings are authorized in a limited number of instances. ie. _____ ____ ____ |
notice of meetings National security concern |
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Requires an analysis of the cost a regulation will impose on small business and must consider less burdensome alternatives |
Regulatory Flexibility Act |
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Allows Congress to review new federal regulations for at least 60 days before they can take effect |
Small Business Regulatory Enforcement Fairness Act |
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Chapter 9 Contract Formation |
meh |
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Sources of Contract Law 1. C_____ L____ and s______ 2. U_____ C_____ C____ (UCC) |
1. Common Law and statues 2. Uniform commercial Code |
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Functions of Contract Law Provides _______ and _______ for ______ |
provides stability and predictability for commerce |
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Promise or set of promises, for breach of which, the law provides a remedy or the performance of which the law in some way recognizes as a duty |
Contract (definition) |
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Requirements of a Valid Contract 1. A________ (offer & Acceptance) 2. C_______: bargained-for-exchange 3. C______ c_______ 4. L_______: purpose of contract must be legal at the time of execution 4. Some types of contracts must be in writing |
1. Acceptance 2. Consideration 3. Contractual Capacity 4. Legality |
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Promise for a promise |
Bilateral |
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Promise for performance. Accept by FULLY performing |
Unilateral |
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______: words (oral or written) ______: conduct creates and defines the templates of the contract |
Express Implied |
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Requirements of Implied Contract 1. PL furnished good or service 2. Expect to be paid 3. had chance to reject and did not |
bleh |
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Contract enforceability 1.V_____ 2.V_____ 3.V____ |
1. Valid 2. Voidable 3. Void |
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Arguement, consideration, contractual capacity and legality |
Valid |
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Valid contract can be avoided or rescinded based on certain legal defenses |
Voidable |
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No contract -Issues with capacity or legality |
Void |
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An essential element for contract formation is _______ The parties must mutually ____ to the same ____ |
agreeemnt assent, bargain |
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An agreement has two components: 1. 2. |
1. Offer 2. Acceptance |
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Advertisements are NOT OFFERS They are ________ to _____ |
invitations to offer |
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Offer
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Termination by Action of the Parties offer can be withdrawn anytime before the offeree accepts the offer effective when the offeree or offeree's agent receives it |
Revocation |
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Termination by Action of the Parties offeree has changed position based on justifiable reliance of the offer |
Irrevocable |
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promise to hold an offer open for a specific period of time in return for consideration |
Option Contracts |
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1. Paid for time period to keep offer open 2. Paying to take away right to revoke |
Express option |
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Paid to perform |
Implied option |
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________by the Offeree (expressed or implied) terminates the offer Effective only when it is received by the offeror or the offeror's agent |
Rejection |
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rejection of original offer and the simultaneous making of a new offer
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Counteroffer |
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Counteroffer _____ _____ ____ : At common law, any change in terms automatically terminates the offer and substitutes the counteroffer -Must accept ____ ____ of my offer |
Mirror image Rule Mirror image |
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Offer terminates by law when the period of time specified in the offer has passed If no time period for acceptance is specified, the offer terminates at the end of a reasonable period of time |
Lapse of Time Termination By Operation of the Law |
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Before acceptance of offer and the subject matter is destroyed, it will terminate the offer |
Destruction of the Subject matter |
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Automatically terminates unless irrevocable offer Offer dies with me unless express option |
Death or Infompetence |
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Legislation or court decision automatically terminates offer or renders contract unenforceable |
Supervening illegality of the proposed contract |
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Termination By Operation of the Law 1. L____ of T_____ 2. D____ of the S_____ M____ 3. D____ or I______ 4. S_____ i_____ of the proposed contract |
1. Lapse of time 2. Destruction of the Subject Matter 3. Death or Incompetence 4. Supervening illegality of the proposed contract |
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A voluntary Act (expressed or implied) by the offeree that shows assent to the terms of the offer |
acceptance |
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Unequivocal Acceptance: the "____ ____" rule |
Mirror Immage |
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communication of acceptance is necessary because there is no mutual exchange of promises |
Bilateral Contract |
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Acceptance is evident, notification is not necessary |
Unilateral Contract |
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Acceptance is effective when Offeree sends |
Mailbox Rule |
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Communication of Acceptance 1. B_____ Contract 2. U____ Contract 3. M_____ Rule |
1. Bilateral 2. Unilateral 3. Mailbox |
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Generally, consideration must have "Legally Sufficient Value"
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promise performance forborance Bargained for Exchange |
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Adequacy of Consideration *Courts typically will not _____ *Law does not protect a person from entering an unwise contract *Cases of "shockingly inadequate consideration" may raise red flags and be ruled _____ *Issues with consideration
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consider unconscionable preexisting duty past consideration |
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Contractual Capacity
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Minors Intoxication Mental Incompetence |
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A Contract entered by a minor is voidable at the option of that minor, and can be _____ A Contract can be disaffirmed at any time during minority, or for a reasonable period after minor is _______ |
disaffirmed emancipated |
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Lack of the capacity at the time of the contract being made. Contract is either voidable or valid, depending on the circumstances
Dis_________ (voidable) Ratification: after '_____ __' |
Disaffirmance Sobering up |
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_____: person is adjudged mentally incompetent by a court of law and guardian has been appointed _____: person does not know she is entering into the contract or lacks the mental capacity to comprehend its nature, purpose, and consequences |
Void voidable |
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A contract must be formed for a legal purpose A specific clause in a contract can be illegal, but the rest of the contract can be _____ Contract to commit ____ ____ is illegal |
enforceable tortious act |
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C_____ contrary to ______prohibited by federal or statutory law is illegal and therefore void (never existed) -contracts to ____ a _____ -G______ |
Contracts contrary to statue commit a crime gambling |
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Contracts Contrary to Public Policy are ____ Contracts in restraint of Trade are generally _____ -Exception: Covenant ____ to ____; time and geographic terms are reasonable |
void void not to compete |
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_____ _____: inconspicious print or legalese
Depends on party's lack of knowledge or expertise |
procedural Unconscionability |
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contracts are oppresive or overly harsh; that deny a remedy for nonperformance |
Substantive Unconscionability |
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A contract may be unforseeable if the parties have not genuinely assented to its terms by 1.M____ 2.F______ M______ 3.U_____ I_____ 4.D______ |
Mistakes Fraudulent Misrepresentation Undue Influence Duress |
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concerns the same material fact, and can be rescinded by either party |
Mutual mistake |
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Mistakes of ____ allow a contract to be canceled |
facct |
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_____ Mistakes cannot be canceled uness -other party to the contract knows or should have known OR -Mistake was due to an inadvertent mathematical mistake and was not gross negligence |
Unilateral |
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Contract is voidable by ____ ______ Elements: -Misrepresentation of Material fact -Intent to deceive -Reliance on misrepresentation -Injury to the innocent party |
FRAUDULENT MISREPRESENTATION voidable by innocent party |
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occurs when a party takes specific action to conceal a fact that is material to the contract |
misrepresentation by Conduct |
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does not entitle a party to relief |
Misrepresentation of Law |
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Misreprentation by ______ -Fiduciary Duty |
Silence |
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____ _____ or pursuasion is presumed if a weaker party talked into doing something not beneficial to him or herself confidentiality, fiduciary, relationship of dependence contract lacks voluntary consent and is voidable |
Undue influence |
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Forcing a party to enter a contract under fear of threat makes the contract voidable -threat must be wrongful or illegal and render a person incapable of exercising free will -Threat of civil suit is not ____ |
duress |
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written evidence in the contract of writing |
The Statue of Frauds |
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The Statue of Frauds
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one year rule marriage 500 |
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onlly original parties to contract have rights and liabilities under the contract |
Privity of Contract |
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Exceptions to Privity of Contract A______ D________ Third Party B_____ C______ |
Assingments Delegations Third Party Beneficiary Contracts |
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party assinging rights to a third party |
assignor |
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party receiving rights |
assignee |
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when rights of assignor are unconditionally assigned, her rights are extinguished |
Effect of an Assingment |
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The third party (a_____) has the right to demand performance from the original party to contract |
assignee |
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party making the delegation of duty |
Delegator |
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party to whom the duty is owed |
delegatee |
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Delegator remains _____, even after delegation |
liable |
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Delegatee is liabile if delegation contracts creates a ______ _______ _______ _____ in the obligee |
third party beneficiary relationship |
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Original parties to the contract intend at the time of contracting to directly benefit a third person Allows ____ _____ _______ to bring suit -ex: life insurance contract |
Third party beneficiaries |
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Chapter 8 |
international law |
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formed as a result of international customs, treaties, and organizations that governs relation among or between nations |
international law |
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law of a particular nation |
national law |
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_____ ____ is the result of attempts to reconcile the need of each to country to be the final authority over its own affairs and the desire to benefit from relations from one another |
International Law |
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Sources of International Law 1. International C_____ 2. T_____ and International A______ 3. International O______ |
Customs Treaties, agreements organizations |
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court independently develop rules by stare decisis for certain areas of law, not covered by statutory law |
common law systems |
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Most of Europe, Asia, Africa, Latin America based on Roman civil law or "code Law |
Civil Law systems |
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Most places that are common law are _____ or former _____ colonies Civil law are more _____ |
English, English Roman |
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Principle of Comity One nation will _____ and give _____ to the laws and judicial decrees of another country Weigh of all the relevant ______ of all the nations affected by the courts decisions |
defer, effect Interest (of parties, of nations, how it is affected by this court decision) |
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_______________ Doctrine Judicial branch of one country will not examine the validity of public acts by foreign government within its own territory |
Act of State Doctrine |
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Two biggest issues that come up with Act of State Doctrine 1. 2. |
Expropriation Confiscation |
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Seize property for public with compensation |
Expropriation |
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Seize for illegal purpose or without compensation |
Confiscation |
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Exempts foreign nations for jurisdiction in U.S. Court |
Soverign immunity |
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3 exceptions to soverign immunity 1. The foreign state has _____ its immunity 2. the foreign state has engaged in "____ ____" within or outside the U.S. that has a "____ ____ in the United States" 3. The foreign state has committed a ___in U.S. or violated certain international laws |
1. waived 2. commercial activity direct effect 3. tort |
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The company itself is exporting those items into the foreign country |
Direct Exporting |
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Agency Relationship with foreign firm -Working with them to facilitate the exporting of those goods into that country -Keep in mind tarrifs |
Indirect Exporting |
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Deals with _____ to distribute goods in that country |
Distributorships |
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Main National Export Initiative: ____ ______ (US Commmerce Department) This is done by: Increased export ______ -Have to wait to get paid for goods during shipment causes problems |
Export promotion financing |
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granting a right for other companies to use patents and trademarks lots of litigations b/c lucrative |
licensing |
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Idea of setting up turnkey operation for business |
Franchising |
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Doing Business Internationally Exporting: 1. 2. 3. 4. |
Direct exporting Indirect Exporting Distributorships Export promotion |
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Doing business internationally Manufacturing abroad 1. 2. 3.investing I'm _____ _____ ____ or ____ ___ |
1. Licensing 2. Franchising 3. Investing in a Wholly-owned subsidiary or Joint venture |
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Investment Protections: ________ is a major concern |
expropriation |
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Export controls 1. Q_____ 2. Restrictions on t_____ exports 3. I______ and S_____ |
1. Quotas 2. Restrictions on technology exports 3. Incentives and Subsidies |
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Import Controls 1. Prohibited Goods 2. Q____ and _____ 3. Political Factors (R_____) 4. Antidumping D____ : less than fair value 5. Minimizing _____ barriers |
2.Quotas and Tarrifs 3.Retaliation 4.Duties 5.Trade |
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Prohibited Goods _______________ act of 1917 if you are an enemy of the US, you cannot import goods from them |
Trading with the Enemy Act |
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taxes on imports |
Tarrifs |
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limit the amount of goods that can be imported |
quotas |
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Minimizing Trade barriers (Goal: increase _______/____ across all of the countries) 1.EU 2.N____ 3.C____ |
manufacturing/gdp 1. european union 2. nafta 3. cafta-dr |
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International trade agreements usually include _____ _____ |
arbitration provisions |
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Choice of _____ Clause What rules/laws are going to be appied UCC |
Choice of Law claws |
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Choice of _____ Clause Where the case will be disputed |
Forum |
