fin 240

What are the sources of american law?

studyguide exam 1

instructor: sethkaplowitz

skaplowitz@mail.sdsu.edu

chapter 1

business activities & the legal environment

● areas of the law that can affect business decision making:

○ contracts

○ intellectual property

○ torts

○ product liability

○ sales

○ internet law, social media, & privacy

○ environmental law & sustainability

sources of american law

● primary sources include the following:

What is stare decisis?

○ the u.s. constitution & the constitution of the various states

○ statutory law (this includes laws passed by congress, state legislatures, or local governing bodies)

○ regulations created by administrative agencies (federal trade commission, etc.)

○ case law & common law doctrines

● secondary sources include the following:

○ books (legal encyclopedias)

○ articles (articles in law reviews)

○ treatises

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How to find primary sources of law?

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○ compilations of law (restatements of the law)

● constitutional law

○ laws based on the u.s. constitution & the constitution of various states ● statutory law

○ laws enacted by legislative bodies

○ different from constitutional law, administrative law, or case law

● administrative law

○ laws created by administrative agencies

○ allows administrative agencies to carry out their duties & responsibilities ● case law & common law doctrines

○ laws announced in court decisions

○ interprets:

■ statutes

■ regulations

■ constitutional provisions

■ other case law

the common law tradition

● plaintiff: person(s) who initiate the lawsuit

● defendant: person(s) being sued or accused

stare decisis: doctrine under which judges are required to follow precedents established in prior decisions; contains 2 aspects:

○ a court can only overturn its own precedents if there is a compelling reason to do so

○ higher court decisions are binding on lower courts

schools of legal thought

● natural law: belief that the legal system should reflect or be based on "higher" universal principles (morality & ethics); laws that are inherent in human nature ● legal positivism: laws created by the government MUST BE OBEYED (even if they are unjust)

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● historical school: looks to the PAST to determine laws in the PRESENT or FUTURE ● legal realism: belief that SOCIAL & ECONOMIC circumstances should also be considered in the determination of law

classifications of law

● substantive law: defines, describes, regulates, & creates legal rights & obligations ● procedural law: establishes the METHODS of enforcing the rights established by substantive law

how to find primary sources of law

● citation: a reference to a publication or legal textbook where legalities (a statute or a court decision) can be found

how to read & understand case law

● appellant: person(s) who asks a higher court for a reversal of a lower court decision ● appellee: person(s) who OPPOSE setting aside or reversing the judgement Don't forget about the age old question of math 1324 epcc

chapter 2

the judiciary's role in american government Don't forget about the age old question of modal action pattern vs fixed action pattern

● judicial review: process where courts decide on whether a law is constitutional or not

basic judicial requirements

● jurisdiction: authority of a court to hear a case & be able to make a decision; categorized into:

○ in personam jurisdiction: jurisdiction over the "person" involved (personal jurisdiction)

○ in rem jurisdiction: jurisdiction over a defendant's PROPERTY

● venue: where the action is tried & where the jury is selected

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● standing to sue: requires that a plaintiff must PROVE that he or she has been injured or threatened with injury in order to sue; can be broken into 3 elements: ○ harm: must have suffered real & substantial or imminent harm, cannot hypothetical

○ causation: incident & injury must be RELATED or CONNECTED

○ remedy: a court decision is able to "fix" or "make better" the injury the state & federal court systems Don't forget about the age old question of psy 311 ole miss

● state courts may include:

○ trial courts of limited jurisdiction

○ trial courts of general jurisdiction

○ appellate courts

○ state supreme court

● federal court system consists of:

○ u.s. district courts

○ u.s. court of appeals

○ u.s. supreme court

alternative dispute resolution

● alternative dispute resolution (adr): different from traditional judicial processes; includes:

○ negotiation: a process where parties settle their dispute informally, with or without attorneys to represent them

○ mediation: a neutral 3rd party (mediator) listens to both sides & proposes a resolution 

○ arbitration: an arbitrator (neutral 3rd party or panel of experts) listens to both sides & imposes a resolution 

international dispute resolution

● parties often include choice-of-law clauses in their contracts to designate the jurisdiction (court or country) incase a dispute arises & which national law will be applied

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chapter 3

procedural rules

● all civil trials held in federal district courts are ruled by the federal rules of civil procedure (frcp)

● stages in a typical lawsuit:

1. incident

2. lawyer files a complaint

3. opposing lawyer an answer or a motion to dismiss

4. pretrial discovery, pretrial conference, etc.

5. trial (afterwards can go to posttrial motions and/or an appeal)

pretrial procedures

● the complaint & answer are known as pleadings

● complaint: the plaintiff's allegations AGAINST the defendant, concerning: ○ jurisdiction: facts proving that the court has subject matter & personal jurisdiction

○ legal theory: principle under which the plaintiff claims or bases on for relief ○ remedy: the "end goal" (what the plaintiff desires)

● answer: a defendant's response to a plaintiff's complaint

● voir dire: the jury selection process (a french phrase meaning to "to see, to speak") the trial

● opening statements

○ at the start of the trial, attorneys of both sides are allowed to set forth facts that they expect to prove during the trial

● examination of witnesses

○ plaintiff/defendant's introduction

○ direct examination of witnesses

○ cross-examination by defendant's attorney

○ possible redirect examination by plaintiff's attorney

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○ possible recross examination by defendant's attorney

○ testimony

○ motion for a directed verdict

○ possible rebuttal

○ possible rejoinder

● closing arguments, jury instructions, & verdict

○ attorneys choose which verdict is BEST for his or her client

○ the judge explains how the law applies to the issue, etc.

○ the jury comes to a verdict - > the trial comes to an end

posttrial motions

● a judge may grant a motion for a new trial if she or he believes that the jury made an incorrect decision or was bias to the other side 

● a motion for judgement n.o.v. (a latin phrase meaning "notwithstanding the verdict") may be granted if the jury's verdict was unreasonable & erroneous 

the appeal

● an appellate court can affirm, reverse, remand, affirm or reverse in part, or modify a decision

enforcing the judgement

● writ of execution: an order that seizes the defendant's nonexempt assets or property

chapter 4

the constitutional powers of government

● checks & balances: allows each branch to limit the actions of one another, stops any 1 branch from exercising too much power

● sample clauses:

○ privileges & immunities clause

○ full faith & credit clause

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○ commerce clause

○ supremacy clause

business & the bill of rights

● the first 10 amendments of the u.s. constitution are known as the bill of rights: 1. freedom of religion, speech, & press

2. the right to bear arms

3. the housing of soldiers

4. protection from unreasonable searches & seizures

5. protection of rights to life, liberty, & property

6. rights of accused persons in criminal cases

7. rights in civil cases

8. excessive bail, fines, & punishments forbidden

9. other rights kept by the people

10. undelegated powers kept by the states & the people

due process & equal protection

● the due process clause has 2 aspects:

○ procedural due process: requires the government to give a person proper notice & an opportunity to be heard

○ substantive due process: focuses on the CONTENT of legislation rather than the FAIRNESS of procedures

● equal protection clause: requires that states give the same rights, privileges, & protections to ALL citizens

privacy rights

● freedom of information act: right for individuals to obtain access to information about them collected in government files

● privacy act: protects the private information of individuals the federal government collects

● electronic communications privacy act: prohibits the sending and/or receiving of private information electronically

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● health insurance portability & accountability act: requires health-care providers & health-care plans to ONLY disclose personal medical information for health-care related reasons, also cannot disclose information without permission from patient

● financial services modernization act: prohibits companies or financial institutions from disclosing private information about a consumer to an unaffiliated 3rd party

chapter 5

business ethics

● business ethics look at the decisions of businesses & determine whether they are "right" or "wrong"

● when making decisions, a business should evaluate:

1. the legal implications of each decision

2. the public relations impact

3. the safety risks for consumers & employees

4. the financial implications

business ethics & social media

● according to the national labor relations board (nlrb), an employer CANNOT prohibit its employees from criticizing the company or co-workers, supervisors, or managers via social media

ethical principles & philosophies

● the study of ethics is generally divided into 2 major categories:

○ duty-based ethics: belief that every person has certain obligations to others (this includes humans & the planet)

○ outcome-based ethics: centers on the IMPACTS and/or EFFECTS of a decision

● different ethical approaches:

○ principle of rights or "rights theory"

○ categorical imperative

○ utilitarianism

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■ cost-benefit analysis

○ corporate social responsibility (csr)

making ethical business decisions

● organizing the ethical concerns & issues can be approached systematically through ethics consultant leonard h. bucklin's business process pragmatism: 1. inquiry

2. discussion

3. decision

4. justification

5. evaluation

● sarbanes-oxley act: protects employees & the public from accounting errors & fraudulent financial practices

global business ethics

● foreign corrupt practices act (fcpa): prohibits the payment or bribing of foreign officials to secure beneficial contracts, assist in obtaining or retaining business, etc.

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