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Chapters 1-3 notes/study guide

by: Jennifer Jamieson

Chapters 1-3 notes/study guide B 275

Marketplace > Brigham Young University - Idaho > Communication > B 275 > Chapters 1 3 notes study guide
Jennifer Jamieson

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About this Document

These notes cover what will be on the Unit 1 exam.
Business Law
Daniel Krege Christensen
Study Guide
business, B275, business law, brigham young university-idaho, byu-idaho, BYUI
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This 10 page Study Guide was uploaded by Jennifer Jamieson on Thursday January 21, 2016. The Study Guide belongs to B 275 at Brigham Young University - Idaho taught by Daniel Krege Christensen in Winter 2016. Since its upload, it has received 67 views. For similar materials see Business Law in Communication at Brigham Young University - Idaho.


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Date Created: 01/21/16
Unit 1 study guide Chapter 1: The Historical and Constitutional Foundations Law -consists of enforceable rules governing relationships among individuals and between individuals and their society (unwritten or written) -establish rights, duties, and privileges that are consistent with the values/beliefs of society a. Jurisprudence: the science or philosophy of law 1. Sources of American Law -Primary sources-sources that establish the law: 1. U.S. and state constitutions 2. Statues, or laws, passed by Congress and state legislatures 3. Regulations created by admin agencies (FDA, etc.) 4. Case law (court decisions) -Secondary sources-books/articles that summarize and clarify the primary sources of law A. CONSTITUTIONAL LAW –the law written in the U.S. or state constitutions 1. U.S. Constitution-Supreme Law of the land (trumps any and all other law) 2. State constitution-supreme within the state’s borders B. STATUTORY LAW-Laws enacted by legislative bodies at any level of government -included in the federal or state code of laws -Includes local ORDINANCES: rules/laws enacted by a city or county legislative body that becomes part of that state’s statutory law (to govern matters not covered by federal or state law) Ex: building and safety codes, zoning ordinances -Federal statute applies to all states (can’t violate the U.S. constitution) -State statute only applies w/in the state’s borders (can’t violate the U.S. or state constitution) A. UNIFORM LAWS -model laws created by the NCCUSL for the states to adopt and put into the state’s statutory law B. The Uniform Commercial Code (UCC) -facilitates commerce among the states by providing a set of rules governing commercial transactions (adopted in all 50 states) C. ADMINISTRATIVE LAW –All law (rules, decisions) created by admin agencies -An Administrative agency: A federal, state, or local gov’t agency established to perform a specific function -authorized by legislative acts, now affect almost every aspect of a business’s operations A. Federal Agencies -executive agencies (inside cabinet departments of exec. Branch) -independent regulatory agencies (FTC, SEC, FCC) B. State and Local Agencies -contain admin agencies, // to federal agencies C. Agency Creation -Enabling legislation allows Congress to create admin. Agencies -Agencies can adjudicate (resolve judicially) disputes involving their regulations -Administrative process: the administration of law by admin. agencies D. Rule Making-major function of admin. agencies Steps: -1. Give public notice of the proposed proceedings, where and when, legal authority, and terms/subject matter, publish it in the Federal Register -2. Allow time for other parties to comment, afterwards, the agency takes them into consideration -3. Draft the final rule and publish in the Federal Register E. Investigation and Enforcement-powers given to agencies F. Adjudication -trial-like hearing before an administrative law judge (ALJ) D. Case Law -law coming from court decisions (governs all areas not covered by statutory or admin. law) 2. The Common Law Tradition -Common Law: the body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to legislature -Precedent: a court decision that was used as an example/authority for other cases involving similar facts A. Stare Decisis -judges are obligated to follow the precedents established in prior decisions  Serve as guides, makes the law more stable and predictable 2 Aspects: 1. The decisions made by higher courts are binding on lower 2. Precedents shouldn’t be overturned unless w/ good reason -Binding Authority: any source of law that a court must follow when deciding a case  Courts can depart from precedents-incorrect, technological or social change  When no precedent-look at precedents from other jurisdictions- persuasive authorities B. Equitable Remedies and Courts of Equity Remedy: the relief given to an innocent party to enforce a right or compensate for the violation of a right -remedies at law: given money or property -remedies in equity: compensated by specific performance, injunction, rescission (cancel) of contract, -Equity: a branch of the law that seeks to supply a remedy when no remedy at law is available  Plaintiff: one who initiates a lawsuit  Defendant: One against whom a lawsuit is brought -equitable principles and maxims: provide guidance in deciding if plaintiff gets equitable relief 3. CLASSIFICATIONS OF LAW Various classifications 1. SUBSTANTIVE (define, describes and creates law) and PROCEDURAL (establish methods to enforce the law) 2. Federal and State 3. Private (btwn persons) and Public (people and gov’t) (Cyberlaw-not a classification, informal term used to refer to laws governing the internet) A. Civil Law and Criminal Law Civil law: definition and enforcement of all private or public rights (goal: obtain remedies) -Civil law system: legal system based on a written code of laws Criminal law: law that defines and governs actions that constitute crimes (goal: punish wrongdoer) B. National and International Law -National law: law of a nation (gov’t can enforce) -International law: laws governing relations among nations (can’t be enforced) APPENDIX TO CHP 1 Finding statutory and admin law -congress laws published in: United States Statutes at Large -state legislature laws in: state publications Laws are referred to in codified form: A. United States Code -arranges all federal laws by subject B. State Codes -arranged by subject C. Administrative Rules -in the Code of Federal Regulations Finding Case Law Federal and state courts consist of 1. Trial courts 2. Appellate court 3. State or U.S. Supreme court A. State Court Decisions -not published, filed by a clerk B. Federal Court Decisions -published unofficially in West’s Federal Supplement or West’s Federal Reporter -Supreme court decisions in United States Reports C. Unpublished Opinions and Old cases -Westlaw Reading and Understanding Case Law Title of a case: ___vs. ____ (plaintiff first, (different w/ appellate court names)) Chapter 3: Courts and Alternative Dispute Resolution 1. The Judiciary’s Role in American Government A. Judicial Review  Legislative: makes the laws; Executive: enforces; Judicial: interprets -Judicial review: the process by which a court (judicial branch) decides on the constitutionality of the legislative and executive branch 2. Basic Judicial requirements a. Jurisdiction-the authority of a court to hear and decide a specific case Over persons: -personal jurisdiction over any person or business that resides in a certain geographic area -long arm statute: a state statute that permits a state to obtain personal jurisdiction over nonresident defendants. The defendant must have sufficient contacts of minimum contacts with the state Over property: -in rem jurisdiction -over property located w/in its boundaries Over Subject Matter: -general jurisdiction (state trial court or federal district court) -limited jurisdiction a. Probate courts: state courts that handle matters relating to the transfer of a person’s assets and obligations after that person’s death b. Bankruptcy courts: handle bankruptcy proceedings -original jurisdiction a. courts of the first instance (trial courts or district courts) -appellate jurisdiction -Jurisdiction of the Federal courts a. given by Article III b. when a plaintiff’s cause of action is based on the U.S. Constitution then a federal question arises (plaintiff can file w/ federal or state court) -original jurisdiction over cases involving diversity of citizenship: btwn 1) citizens of different states 2)a foreign country and citizens of a state or of different states 3)citizens of a state and citizens or subjects of a foreign country (federal court will apply state law) -MUST BE MORE THAN $75,000 -Exclusive versus concurrent jurisdiction a. Concurrent: when two different courts have the power to hear a case b. Exclusive: when a case can only be heard in a particular court -state: not subject to federal jurisdiction (divorce and adoption) -federal: federal crimes, copyrights, bankruptcy b. Jurisdiction in Cyberspace The “Sliding-scale” standard -Jurisdiction is proper for 1) substantial business conducted over the internet -Jurisdiction may/may not be proper for 2) interactivity through a Web site -Jurisdiction isn’t proper for 3) Passive advertising International Jurisdictional Issues -different laws for different countries c. Venue -is concerned w/ the most appropriate physical location for a trial d. Standing to sue -the party bringing the lawsuit to court must have standing to sue-a sufficient stake in the matter to justify seeking relief through the court system -requires that the controversy be a justiciable controversy-must be real and substantial 3. The State and Federal Court Systems A. State Court Systems -1. Trial courts of limited jurisdiction 2. Trial courts of general jurisdiction 3. Appellate courts 4. State’s highest court (state supreme court) -First bring case to a trial court, then to an appellate court B. Trial Courts General jurisdiction: county, district, superior or circuit courts Limited jurisdiction: special inferior trial courts or minor judiciary courts -Inferior court: 1. small claims court-hear civil cases w/ claims less than 5,000 2. Municipal court-traffic cases C. Appellate, or Reviewing, Courts -determines if the trial court committed an error -deals w/ questions of law: an issue involving the application or interpretation of a law; not w/ questions of fact: an issue that involves only disputed facts, what really happened in regard to the dispute being tried D. Highest state courts -decisions are final on all questions of state law, can be overruled by the U.S. Supreme court if it deals w/ federal law 4. The Federal Court System 1) U.S. district courts (courts of general and various limited jurisdiction) 2) U.S. courts of appeals (intermediate courts of appeal) 3) The U.S. Supreme Court -Appeals to the U.S. Supreme Court require a writ of certiorari-an order issued by the higher court asking the lower court for the record of a case. –The rule of four is that four of the nine justices must approve the writ -Petitions granted by the court-when cases raise important constitutional q’s 5. Following A State Court Case Litigation: the process of resolving a dispute through the court system A. The Pleadings: complaint/answer and counterclaim/reply -The plaintiff’s complaint against the defendant -The Defendant must answer, if he doesn’t it is a default judgment towards the plaintiff. -The Defendant can make a counterclaim against the plaintiff, who then must reply B. Pretrial Motions: -Ex: motion to dismiss, motion to strike, motion for judgment on the pleadings C. Discovery: -obtain info and gather evidence from the other party or from third parties prior to trial -Ex: Depositions, interrogatories, requests for other info, electronic discovery D. Pretrial Conference: -Judge and opposing attorneys meet informally to see if they could possibly settle w/o trial, and to identify the matters in the dispute E. Jury Selection: aka “voir dire” -right to jury guaranteed in federal courts if amount exceeds $20 (not guaranteed in state courts) -during voir dire, the attorneys ask prospective jurors questions to dismiss any with bias or connection to the case (peremptorily-w/o reason; or for cause-w/ an explanation) F. At the Trial -opening arguments, plaintiff’s case, next the defendant’s attorney can motion for a directed verdict: asks the judge to direct a verdict for the defendant on the ground that the plaintiff has presented no evidence that would justify the granting of the plaintiff’s remedy, if it is not granted the defendant’s attorney presents the defendant’s case, another chance for a motion for a directed verdict, the plaintiff’s attorney can challenge any evidence and cross-examine, closing arguments, jury deliberates, gives a verdict (and if needed, the amount of the award) G. Posttrial Motions -After the verdict, a motion for judgment n.o.v. requesting the court to grant judgment in favor of the party making the motion on the ground that the jury’s verdict against him/her was unreasonable and erroneous -Or a motion for a new trial asking the judge to set aside the adverse verdict and to hold a new trial E. The Appeal -Both can appeal, but need legitimate grounds to file -Filing the appeal, appellate review, appeal to a higher appellate court -brief: legal document prepared for an appellate court F. Enforcing the Judgment -lack of guarantees that any judgment will be enforced 6. The courts adapt to the online world A. Electronic Filing B. Courts Online -Courts have websites, they include: court personnel and office phone numbers, court rules, judicial decisions, docket information and databases C. Cyber Courts and Proceedings 7. Alternative Dispute Resolution-other than litigation Negotiation -parties attempt to settle their dispute informally w/ or w/o attorneys Mediation -A neutral third party acts as a mediator and works w/ both sides in the dispute to facilitate a resolution, he acts as a communicating agent btwn the parties Arbitration -settling a dispute by submitting it to a disinterested third party who renders a decision that is (most often) legally binding -Arbitration clause: put into a contract stating that if any disputes arise they will be resolved through arbitration -mandatory arbitration in employment contracts-have been ruled enforceable Other types of ADR -assisted negotiation -early neutral case evaluation -mini-trial -binding mediation, mediation-arbitration -summary jury trials (SJTs): parties present arguments and jury gives a nonbinding verdict, to use as a guide Providers of ADR services -government agencies, private organizations -AAA 8. Online dispute resolution (ODR) -resolve cases involving the Internet -based on general legal principles -online negotiation and mediation services


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