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CLEMSON / Law / LAW 3220 / What are the roles of law and society?

What are the roles of law and society?

What are the roles of law and society?


School: Clemson University
Department: Law
Course: Legal Environment of Business
Professor: Edward claggett
Term: Fall 2015
Tags: Law
Cost: 50
Name: Law 322 Exam 1 Study Guide
Description: These notes cover exactly what will be on Exam 1.
Uploaded: 01/27/2016
7 Pages 9 Views 7 Unlocks

Law 322

What are the roles of law and society?

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

What are the sources of law?

We also discuss several other topics like which of the following is not a form of asexual reproduction? see section 47.1 (page) .

2. What is acceptable and what the penalties are We also discuss several other topics like psyc 2100

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 We also discuss several other topics like giocare example sentences

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

What are the different way to classify laws?

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  If you want to learn more check out econ 206

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  Don't forget about the age old question of psychology 2301 exam 1

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 We also discuss several other topics like umd 105 bus

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  


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  


d. Defendant has to have an answer to complaint

i. Motion for dismiss,

1. Affirmative defenses

a. Self-defense, assumption of  

risk, contributory  


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

a. 1st 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,  


2. Equitable

a. Specific performance,  


5. Appellate

a. If either party is not happy then we go here

b. You file written brief and oral arguments to get  


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  


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  

businesses and individuals

vii. 4th 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. 5th-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

ix. 14th-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

5. 5th 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,  


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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