LSB 3213 – Exam 1 Study Guide

What is the Schools of Legal Thought?

Chapter 1, 4, 5

Legal Philosophy, Constitutional Law, Legal System

Ch. 1

∙ Schools of Legal Thought 

o Natural Law

 Universal right and wrong, conscience

o Positive Law

 If there isn’t a written law against it, it’s legal

o Historical Approach

 History is our best guide when we encounter something new o Legal Realism

 Practicality, references to authority

∙ Hierarchy of Laws **Federal law is weighted more

o Constitution

 Statutes

∙ Regulations

∙ Federal and State Courts

o Trial

o Appeals

 Guaranteed one appeal, but not guaranteed another if you lose  the first one

o Supreme

∙ Court Awards

o Civil claims for business dealings

o Damages = money

o Equitable remedies

 Specific performance (ordered to do something)

What is the Hierarchy of Laws?

 Injunction (ordered to not do something)

∙ Common Law system

o Judges interpret laws and set precedents that effectively become new  “laws”

o Judges overrule the legislature

∙ Stare decisis – stand on decisions that come before us, unless there’s a  compelling reason not to follow them (from legal arguments) If you want to learn more check out unscientific surveys to gauge public opinion

Ch. 4 – Constitutional Law

∙ 10th Amendment – states have power over anything not specifically given to  the federal government

∙ Checks and balances – keep government power from being concentrated in a  small group of people

∙ Limits on Federal Power 

o Need specific authorization in Constitution

o Subject to checks and balances

∙ Limits on State Power 

o Federal preemption

o Privileges and immunities: rights in home states vs. other states  Says when states can discriminate

What is difference between federal and state courts?

∙ Must have good reason

∙ Must not interfere with essential rights

o Full faith and credit: validity of other states’ laws

o Dormant commerce clause: intrastate commerce If you want to learn more check out ubc physics

o Commerce Clause: State interest vs. burden on interstate commerce ∙ Bill of Rights

o Gives people specific rights and tells the gov. not to interfere with  them

o Not directly applicable to private businesses

o Freedom of Speech

 Not an absolute right, but restrictions must be narrowly tailored  Not okay if speech creates a “clear and present danger”

∙ Marketplace of ideas – Justice Oliver Wendell Holmes (1919) o “the ultimate good desired is better reached by free trade in ideas” ∙ Due Process 

o 5th and 14th amendments

o Gov. must follow a fair process to take your stuff or arrest you ∙ Court proceedings vs. Private arbitration

o Arbitration requirements

 Contract is the binding document

 Decision is unenforceable if it “strays from interpretation and  application of the agreement” or the person incites their “own  brand of industrial justice”

∙ Equal Protection 

o Similarly situated people have to be treated the same under the law o 14th amendment We also discuss several other topics like poli 339 class notes

o Tests for discrimination:

 Strict/higher scrutiny

∙ Race, gender, national origin We also discuss several other topics like math 2568 osu

 Rational basis

∙ Businesses, other factors

Misc.  

∙ Warrants

o Generally required document giving the police the right to investigate  property

o Exceptions (no warrant needed):

 Contaminated food/water

 Highly regulated industries If you want to learn more check out biol 4400 study guide

 General enforcement scheme

∙ Privacy Rights

o Personal info. of employees, customers, etc.

o Employer can track computer and phone use of employees

∙ Right to Remain Silent

o Not applicable in civil cases

o Not a corporate right

 Document discovery

Ch. 5 – Business Ethics

∙ Lawyers – Unethical reputation

∙ Three Frameworks 

o Deontology

 Duty-based ethics

o Utilitarianism

 Greatest good for the greatest number

o Virtue Ethics

 Look inward for guidance

∙ Whistleblower Laws – protect against retaliation If you want to learn more check out john brunero

∙ Corporate Social Responsibility

o For-profit companies helping to solve societal problems

 Triple bottom line – People, Planet, Profit

∙ Business Law and Ethics

o Examples:

 Marketing Restrictions

∙ Joe Camel

 Foreign Corrupt Practices Act

∙ Illegal to bribe foreign officials or private party  

intermediaries to obtain business

o Except: “grease payments”

Ch. 2 – Courts and Civil Procedure

∙ The rights you have are only meaningful if the court has a process for  enforcing those rights 

∙ Views on Procedure

o Lawyers protect law and order vs. Lawyers insulate the powerful ∙ Judicial Review

o Judiciary is the ultimate decider of what is legal; decides arguments  between the president and congress  

∙ Jurisdiction

o Personal

 Minimum contacts in business cases

o Subject Matter

 Federal court

∙ Federal question

∙ Diversity of citizenship and $75,000 claim

∙ Standing

o Courts will only hear real disputes between parties that have suffered  real harm, no hypothetical cases

∙ Adversarial System

o Requires zealous advocacy by lawyers; not an unbiased search for  truth

o Creates competition that will hopefully lead to the truth o Wasteful and subject to the influence of money

∙ Litigation Process

o Complaint

o Service of process

o Default judgement

o Answer  

o Motions

o Discovery 

 No “fishing expeditions”

 Interrogatories

 Depositions

 Affidavits

 Electronic discovery request

 Expensive; most business just settle

o Judgement

 Enforcement

 Appeal

∙ Alternative Dispute Resolution 

o Efficient, lower cost, flexible

o Support by the courts

 Lessens their caseload

o Types:

 Negotiation

 Mediation

 Arbitration

o 2 Ways to End Up in ADR

 Court ordered

 Contract obligation

∙ Pros/Cons of Courts vs. ADR

o Confidentiality vs. transparency

o Clear winner vs. compromise

o Rising cost of arbitration