Law 322 Exam 1 Study Guide
Law 322 Exam 1 Study Guide LAW 3220
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This 7 page Study Guide was uploaded by Stephanie Notetaker on Wednesday January 27, 2016. The Study Guide belongs to LAW 3220 at Clemson University taught by Edward R. Claggett in Fall 2015. Since its upload, it has received 155 views. For similar materials see Legal Environment of Business in Law and Legal Studies at Clemson University.
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Date Created: 01/27/16
Law 322 Exam 1 Study Guide 1. Law is a set of rules and guidelines that tell us standards for business and personal activity, it sets society’s values a. If you cross the line, here is the punishment 2. Roles of law and society a. Define what is acceptable to society b. Encourage you to engage in acceptable behavior c. Assist in resolving disputes and conflicts d. Has to be flexible enough to change as technology changes 3. Sources of law a. Primary-‐supreme law-‐U. S constitution i. Any law that conflicts with it can be ruled in valid b. Created 3 branches of government i. Legislative-‐congress, house and senate 1. Pass statutory law, the substantive law 2. What is acceptable and what the penalties are ii. Court system 1. Issues decisions from a judge or jury 2. Presidential value iii. Executive-‐President 1. Can issue executive orders 4. Different ways to classify laws a. Public versus private i. Public-‐this is what is acceptable to society ii. Private-‐if we sign a contract, the terms in this contract are private, they only apply to two people not the public b. Civil versus criminal i. Differences are civil deal with less serious offenses, penalties are less severe maybe up to 12 months, burden of proof is by the preponderance of the evidence ii. Criminal are more serious, the penalties are more severe can include the death penalty, burden of proof is higher, you have to prove beyond a reasonable doubt c. Substantive-‐statutory law, the stuff the legislature is writing d. Procedural-‐federal rules of civil procedural that tells you how to conduct a civil trial, it’s the process or the procedure for you to get compensated 5. Court system a. Court of original jurisdiction i. Does the court have the ability to hear the case b. Appellate court i. Where either party has the right to get to, can’t appeal questions of fact c. Supreme Court i. You can request the supreme court, they don’t take many cases only important ones 6. Federal level a. U.S district courts i. Only federal court that you can get a jury trial ii. Might see magistrates in action 1. Someone that helps the judge move the case along 2. Can hear and decide cases iii. The court of original jurisdiction of the federal system b. U.S Court of appeals c. Supreme Court i. Send a writ of certioari 1. Have to get at least 4 of the 9 justices to hear the appeal 7. Special or limited jurisdiction a. Bankruptcy court b. US tax court c. U.S court of federal claims-‐claims against the government 8. Federal judges a. Have to be nominated by the president of the US b. Have to be confirmed by 51 or more senators c. Appointed for lifetime d. Given judicial immunity-‐extends to anyone working for the court like magistrates i. The hope they will base cases solely on the law 9. State Courts a. 3 tier b. Municipal court-‐traffic violations c. Justice of the peace d. Probate court e. Small claims court-‐quicker and less expensive, just have to make sure the amount is lower than their cap 10.State judges a. Normally elected or appointed by the governor b. Not lifetime appointments c. Specific limited period of years d. Judicial immunity i. cannot be sued for damages or decisions 11.Jurisdiction a. Does the court have authority to hear the case and issue a binding decision b. The court has subject matter and personal jurisdiction i. Subject matter-‐statutory law c. Concurrent-‐either court system can take it, if jurisdiction is based upon diversity of citizenship, the federal courts will say they only take jurisdiction if the amount of dispute is 75,000 or more, if it is under than plaintiff can only file in state system 12.State long arm statues a. If it’s a business, they can be sued in the state of headquarters, any state they are doing busy in b. If it’s personal if they do business, get injured, or are traveling through the state 13.Personal property-‐in REM-‐the court where that property is located has jurisdiction, only related to property 14.Conflict of law or choice of law**** a. If the dispute is in the federal system, it will almost always apply its states rules of procedure b. 2 rules: i. Historical: where the underlying dispute arose, apply the state substantive law where the dispute occurred ii. Emerging: apply the law where the state has the most significant interest in resolving the dispute, normally the state where the injured party resides 15.Plaintiff gets to choose where to file a. Defendant has 3 possibilities to get it moved i. Motion for removal from state court 1. Very fact specific, only granted if the plaintiff files the complaint in his state court, if the defendant is an out of state resident, and can only be removed to the federal court system ii. Change of venue 1. If in the judges opinion, there has been a great deal of publicity 2. Can’t have biased judges or jurors 3. State to federal, federal to state, state to state, if they have the same jurisdiction iii. Move to the most convenient form-‐form of non convens 1. Where the majority of the parties that have to participate in the trial live 2. Judge will almost always grant 3. Where the witnesses live 16.Trial Procedures a. Federal rules of civil procedure i. Rules that govern civil trials in the federal court system ii. 6 potential steps of a civil trial-‐know the order 1. Pleading a. Complaint filed by plaintiff, defendant files an answer to complaint b. Complaint has to have why it has jurisdiction, facts of dispute, what remedy the plaintiff wants c. Plaintiff has to make sure it gets personally delivered d. Defendant has to have an answer to complaint i. Motion for dismiss, 1. Affirmative defenses a. Self-‐defense, assumption of risk, contributory negligence e. Defendant might file a counter claim, wants court to hear at the same time, the plaintiff has to file a reply if defendant does this i. Defendant files an answer to plaintiffs complaint, the plaintiff files a reply to a defendants counter-‐claim 2. Discovery**broadest a. Designed to encourage settles, and preserve evidence b. Depositions c. Written interrogatories d. Order for production of documents e. Request for admissions of fact f. Order for mental or physical exams g. If you don’t want to participate in discovery i. Court can fine you and put you in jail ii. The court can enter a fault judgment for the other party (the other party wins) h. Either party can make a motion for summary judgment i. Judge can grant judgment for one party 3. Pre-‐trial a. Optional b. Used to clarify the courts calendar, when they are going to have hearings c. Judge can strongly encourage the parties to settle during this stage 4. Trial st a. 1 step-‐if you have requested a jury b. Notices go out and potential jurors come in c. Attorneys make opening statements d. Closing arguments from lawyers e. Either party can make a motion for the judge to make a direct verdict f. Judge instructs jurors what the law is, judge will also explain what the burden of proof is g. Jury goes away and comes back with a verdict h. Either party can make a Motion for judgment not withstanding the verdict i. Remedies i. Monetary or equitable 1. Monetary a. Compensatory, punitive, nominal 2. Equitable a. Specific performance, injunction 5. Appellate a. If either party is not happy then we go here b. You file written brief and oral arguments to get here c. Appellate court will hear it and issue a decision, if still not happy you can request a Supreme Court to hear it d. Once you have a decision, you might have to go to the enforcement stage 6. Enforcement-‐collect damages after final judgment a. Writ of execution i. Allows you to legally have parties assets b. Garnishment order i. If the losing party has a steady job you can get up to 25% of their net pay until you get the full amount 7. Alternative disputes a. Arbitration-‐most formal i. Binding-‐ can’t appeal it to the court system ii. Nonbinding-‐ can go to court b. Mediation-‐resolve labor disputes c. Negotiation-‐least formal, least widely used, both parties get in a room and try to reach a settlement and sign a contract, if they cant reach one they go to court iii. Discovery-‐use of expert witnesses, if one party asks for trade secrets you should ask for court protection b. Constitution i. 7 articles, 27 amendments ii. 2/3 of congress-‐house and senate iii. ¾ of states ratify iv. Commerce clause-‐gives congress the right to regulate interstate commerce, states are fully able to regulate intrastate commerce v. Necessary and proper clause-‐gives congress the power to pass all laws and regulations vi. Taxing power-‐gives congress the power to raise taxes 1. States can tax the profits of interstate businesses 2. Taxes are designed to: a. Raise revenue b. Encourage/discourage certain behavior by th businesses and individuals vii. 4 amendment-‐search and seizure 1. You have to get a search warrant issued by a judge, exception is if you are a highly regulated business viii. 5 -‐can the forced to testify against yourself in a trial, only applies to yourself not businesses, government cant take private property for public use unless you get compensated (eminent domain laws) 1. **Taking-‐government takes action on your property, changes zoning and drives it to 0 value th ix. 14 -‐Due Process and equal protection 1. If denied these, case gets thrown out 2. Due Process a. Rules and procedures need to be followed 3. Equal Protection a. Apply the law the same to everybody c. Criminal laws i. Largely made up of federal and states statutory laws plus court decisions ii. Criminal negligence 1. So careless that it’s a disregard of the rights and safety of others like drunk driving iii. Felonies and misdemeanors 1. Misdemeanors: Less serious 2. Felonies: More serious like violent crimes more harsh penalties 3. To be convicted of a crime you have to be beyond a reasonable doubt a. “Actus reus” b. “Mens rea” i. State of mind ii. Premeditated murder 4. Business can be convicted of violating a criminal law a. Have to prove it was an individual th 5. 5 amendment Miranda rights a. Have to be told these b. Right to remain silent c. Anything can be used against you in court d. Right to an attorney, if you cant find one, we will for cheap 6. Statue of limitations, alibi, affirmative defenses, self-‐ defense, entrapment, state of mind (intoxication) 7. Only the government can bring a criminal action a. An arraignment, the charges are given to the accused, judge sets a court date and decides what to do with the accused, trys to get it off the court b. Discovery**major difference i. Comes just before the trial, the day before, its more limited ii. Burden to find their own evidence iii. Exculpatory evidence-‐any evidence that tends to prove him evidence iv. Double jeopardy v. White-‐collar crimes-‐be familiar with embezzlement, bribery, credit card fraud, etc. 8. Sentencing Guidelines a. Only apply to federal criminal trials b. US Supreme Court says they are not mandatory, only there to help
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