BLAW 3310-001 Legal Ethical Business Environment
Instructor: Dr. Charles Miller
Friday August 28, 2015
4 types of Law – beginning on page 5 of textbook
o 1) Constitutional Law – Laws from the constitution; a relationship between the government and individuals as well as the government and the states. It is the smallest type of law
ALL PEOPLE MUST HAVE EQUAL PROTECTION OF THE LAW
o 2) Statutory Law – This is state law; laws applicable only for each state individually
o 3) Administrative Law – When agencies and businesses adopt their own personal laws, rules, regulations, etc for themselves that comply with statutory laws
o 4) Common Law – Law made by the judges; it’s the way a judge interprets statutory law
Judges define the statutes as it relates to the case at hand
Stare Decisis – If a case comes up with the same situation as a case that was previously settled, the judge MUST make the same ruling on the case.
When lawyers make their arguments in court, they are trying to prove that their case is similar to a case in the past that has
already made the decision they are looking for
EXCEPTIONS: Only the Supreme Court can change the precedent (decisions already made by past court cases)
o Example: Plessy v. Ferguson (1896) was overturned by Brown v. Board of Education (1954) Don't forget about the age old question of what are the cell basics?
Monday August 31, 2015
Ignore the pages in the book on Ethics
P. 14 – Discusses Civil cour – just know that civil law is all about the money; it’s a person v. person court
P. 22 – Lists a chapter summary and terms to know
To win a civil case, you must have preponderance of evidence – more evidence that proves your point over the person trying to prove their point Chapter 2 – Texas Court System (Starting from the bottom and working to the top) o Jurisdiction means “the court speaks;”
o Subject Matter Jurisdiction - deciding jurisdiction means deciding which court has the power to make the decision on the case at hand We also discuss several other topics like How do these three fit together?
o Justice of the Peace Court TX (short hand “JP”)
Officials are elected
Only covers minor civil disputes of under $10,000
Also covers evictions – they can repossess your car, house, etc for not making payments
o Municipal Courts
Only deal with code violations and small misdemeanors
o County Court at Law (short hand “CC at Law”)
Slightly bigger than JP Court; handles matters between $10,000 and $100,000
Also handles appeals cases that come from the JP Courts; In other words, if the losing party wants to appeal the decision made in the JP Court, it goes to the CC at Law If you want to learn more check out What is Mercury Barometer?
o Civil District Court
Didn’t speak much on this; only noted it handles the lame civil cases you don’t watch on TV
o Criminal District Court
The fun one that handles cases such as murder and other criminal ofenses Appeals from this court go to the Appeals Court, which then moves up to the TX Supreme Court if need be
o Family Court at Law
Handles divorces, child custody, etc –So many of these cases that they made a separate court for it If you want to learn more check out Why do cells reproduce?
o Probate Court
Handles battles of someone’s will, ya know the thing people write to say who has what when they die.
All judges in TX are elected; therefore they can be voted out if people don’t like them We also discuss several other topics like 11) What are the three sources of funding for the public sector?
Don't forget about the age old question of ● Why is depreciation considered a non-cash charge?
o Judges have judicial immunity meaning they cannot be sued…lucky.
Chapter 2 – Federal Court System (working from bottom to top again) pg. 26 o District Courts
US is divided into geographical areas and assigned a # of judges based on population of the area
Cases must be moved from state courts to federal courts if the plaintif and defendant are from diferent states
o Court of Appeals pg. 31
Where you go if you lose in the district court
TX is in the 5th circuit court of appeals
Can only get into this court if you already have a decision from a diferent court
o US Supreme Court pg. 32
Writ of Certiorari - The Supreme Court picks cases from state or other federal courts to bring into the Supreme Court
People who don’t like the decisions made in the district court and court of appeals can then move on to be considered to be taken up by the Supreme Court
o Side Court: Bankruptcy Court
Deals only with bankruptcy issues; only in the federal court system, not the state court system
Rules of Civil Procedure – Basically the rules you must abide by while in court.
Personal Jurisdiction – Deciding whether or not it is fair for a defendant to be tried in court.
In Rem Jurisdiction – If you own land in a state, you are subject to be tried in that state’s court.
September 2, 2015
Pg. 38 Long Arm Statute – States can reach to defendants who don’t live in the state and bring them in their court under personal jurisdiction
o Pg. 39 Blimka v. My Web Wholesaler
Blimka, an Idaho man, made a huge online order from My Web Wholesaler, who were based in Maine. Blimka was unsatisfied
with the product and sued My Web Wholesaler for false
advertising in Idaho. The long arm statute allowed the Idaho
court personal jurisdiction for the case because the act of false advertising occurred in Idaho, regardless that My Web
Wholesaler is based in Maine
Pg. 45 Venue – Can sue where the incident happened or where the defendant lives;
o Geographically-based only
o Motion for Change of Venue – An argument that a fair trial can’t be held because of publicity of the crime prior to the trial giving people a biased view of the case
How to pick a lawyer; decide on the following:
o How do you want to pay the lawyer
Standard contingency payment for a lawyer is about 1/3 or 33% of the winnings of the case
The further the case gets, the higher percentage the
lawyer is paid
Provides good incentive for the lawyer to work hard
Bad for the person who hired the lawyer because it can
add up to a big percentage of the money
Daily/Hourly rate – Sign an agreement to pay X amount of
money per hour
Bad part: super expensive; rich people have an upper
hand; lawyers aren’t as motivated since they are getting
Pg. 53 Once you pick a lawyer, you file the lawsuit and identify who all the parties are and where the case will be tried (AKA who has jurisdiction). o The basic facts of the case are then laid out; each party lays out what they want from the lawsuit
o Once you file the suit, it goes into the country clerk’s office.
o Then a physical delivery of the lawsuit must be given before it can be official
Called Service of Process – “you have been served”
When suing a corporation, each corporation has a person
designated to receive the service of process
Service of process is when the meter starts running and
the person has so much time to respond to the suit
Pg. 54 Once a person receives the service of process, they must respond. Responding can be as simple as stating that they are the person who is being sued, or they could possibly sue with a counter claim
How many cases actually go to trial? About 5-10%; most cases are settled before trial
Pg. 56 Obtaining information before the trial
o Each side has equal discovery rights to obtain information
o Oral deposition – Defendant must do a deposition in which they orally state what happens and answer questions; they are under oath. o The plaintif can be deposed as well
The deposition is important because when those people are called to the stand in court, they can compare the stories from
the deposition to see if they are lying
Can volunteer to be deposed or not
The lawyer can subpoena a witness and force them to give a deposition
o Written Interrogatories – Written down question and answers Pg. 58 Request for Production of Documents
o Lawyers can request to get documents about a person that they think will help them win the case
Example: Lawyers can make clients get examined by doctors for a mental or physical illness if the document of the results will
help the case
September 4, 2015
Pg. 60 Motion to dismiss – requesting to dismiss a case because of the regulations required to file a case were not followed correctly. Example: The court can’t hear the case if someone doesn’t file a lawsuit within 2 years, so if a lawsuit is filed after that, it can be dismissed
Breach of contract – If you don’t get paid within the contract period, you can sue someone within a four year period
Motion of Summary judgement – Case isn’t worth taking to trial because there aren’t many facts about the case, so the case is decided quickly by a judge without having to go to trial
“Voirdire” – French for “to speak the truth.”
o Judges and lawyers look for people to follow voirdire when choosing a jury
o Lawyers can strike a person in a panel so they won’t serve on the jury. They only get so many strikes
Pg. 62 – When the trial actually begins
o Starts with opening statements
o The plaintif then presents their testimony with witnesses and examinations
o The defendant can then cross examine the plaintif’s witnesses
o When the jury makes a decision, it’s called a verdict
Mistrials are when a jury can’t reach a unanimous decision
Civil Case – Only about money, no criminal charges or whatever; is the defendant guilty or innocent?
o If guilty, what are the cost of damages?
Compensatory Damage – Paying just enough money back where the plaintif would have been financially before the incident
Determine this number with receipts from medical bills,
pain and sufering costs, time lost at work, court costs,
Punitive Damage – Money given to the plaintif on top of
Total amount adds up to whatever jury decides
Plaintif and lawyer wants punitive because that means
more money for each of them
Doesn’t happen in contract cases because those are
strictly about money lost in contracts, and that’s always a
designated amount from the start
Nominal Damage – Symbolic damages that pay out super small amounts, like $1. These only happen more for symbolic reasons; super rare
Pg. 64 Graph
Injunction – When money doesn’t fix the problem, and the plaintif must receive something else either in addition to or in place of money o Example: Someone breaks a rare vase and gets sued for it; the plaintif may want the case to be settled by the defendant getting the plaintif another vase rather than just receiving money from the defendant.
September 9, 2015
ADR – Alternative Dispute Resolutions
o Appellate Court – 9 judges hear the case and the majority opinion prevails
Each judge has to explain why they voted the way they did
o Pg. 69 Garnishment – Instead of having to pay a fine in a civil case when found guilty, garnishment means that the loss can be cut from the defendants pay role check over a period of time
o Writ of execution – If the guilty party doesn’t pay, the court can seize your property and sell it
o What’s wrong with this civil system?
It favors the plaintif and the wealthy
It takes too long –about 12 to 15 months to get a case after filing suit
There’s no bar to prevent people from filing law suits even if they’re just silly causes
There’s no risk to sue for those who don’t have anything
o Pg. 71 Arbitration – Solves disputes between 2 parties where you don’t go to court and sue
You just pick an arbitrator to hear both sides and make a choice Good for construction companies and things that don’t have time to wait for court
International contracts are good for arbitration because people don’t all have to come together in one place for court
Pg. 75 Arbitration and cotton contracts** exhibit 3.4
o Mediation – When a third party neutral comes in and tries to make peace by leading the defendant and plaintif to an agreement
o Negotiation – Exactly as it sounds; people just negotiate a settlement o Pg. 76 – has a good summary of everything
Constitution and 1st 10 Amendments (Bill of Rights)
o Powers are separated between federal and state
o Example: Bankruptcy and defense are powers given to the central government
Commerce Clause – Central government has power to pass laws involving commerce/trade among other nations and between states
Necessary and Proper Clause – The central government can intervene if it is necessary and proper for the best benefit of the nation
Civil Rights Act 1964 – Prevents racial discrimination
Pg. 81 Katzenbach v. McClung – BBQ joint in Alabama gets sued for violating the civil rights act by not serving black people; case went to the Supreme Court
o McClung argued that it isn’t a deal of interstate commerce since his customers already lived in the state of Alabama, so the federal government shouldn’t be allowed to intervene
o The Supreme Court ruled that it is discrimination and it has an influence on interstate commerce because this restaurant was on a major road, and a person from another state may not travel on that road because they know that this restaurant discriminates.
o Overall, this case just shows how the federal government can use the commerce clause and necessary and proper clause to intervene Same day as the BBQ case above, the Heart of Atlanta hotel won’t let black people rent rooms.
o Court rules that it conflicts with interstate commerce because it is afecting out of state travelers; therefore since it involves interstate commerce, Congress can regulate it.
September 11, 2015
Test 1, Chapters 1-5 on Friday, September 18
Pg. 81 Supremacy Clause – Federal laws are supreme and take priority over state laws
o Preemption – Term the federal uses to regulate state laws
How broad has interstate commerce become?
o The federal government has penalized people for growing excess wheat on their farm because it’s going over the set quota even though they’re feeding the extra to their own animals
Pg. 84 Examples when state laws don’t agree with the federal laws, and the fed used their power from the commerce clause:
o Arizona train case – Arizona laws required trains coming into the state to break apart into smaller numbers of train cars for safety; federal government intervened and wouldn’t allow it
o The state of Alabama charges other states more to come into Alabama and dump chemical waste than it does charge people from within the state to dump hazardous waste; federal government intervened and wouldn’t allow it
o Oklahoma passed a law saying minnows could not be sold outside of the state; federal government said that was not allowed because it afected interstate commerce
Pg. 87 Taxing Power – Congress has power to tax peoples’ income Pg. 90 – Businesses and free speech
o Bank of Boston case – Bank regulated the amount of funds people can raise for running for position of office; question became can political donations be regulated or is it a violation of free speech?
Answer is that you cannot regulate donations
o What are you allowed to advertise on TV and such?
Pg. 85 It can be regulated if it is false advertising
Pg. 96 Right to Bear Arms – It’s open carry in the state of Texas now. Dr. Miller is worried about that
Eminent Domain – The state can use private land for public use o As long as it fulfills the just compensation clause – The owners of the private property need to be paid justly for the value of the land that the state is seizing
o Pg. 99 Read the case on eminent domain
Right to Trial by Jury – This was important to put in the constitution by the founders because it means you can be judged by your peers, not just the government, which is what they faced all the time while they were under British rule
Pg. 102 Due Process – A layout of the procedures and rules for holding a trial. This is to make sure everyone is tried in the same, fair way
Pg. 103 Equal Protection Law – Made to prevent discrimination, and says that the same laws apply to all types of people
Pg. 106 Good summary of Chapter 4
Preview of Chapter 5 – only chapter that focuses on criminal cases, not civil cases
o Misdemeanor is a small crime
o Felony is a major crime and people get lots of prison time
o The standard to be convicted of a felony – beyond reasonable doubt September 14, 2015
Check the key terms on Blackboard
Read post on Blackboard about Corner Street Bakery
Pg. 113 “Mens rea” – Latin term meaning the penalty is more severe when there is intent to actually commit crimes; it wasn’t an accident Miranda Rights – Rights that the arresting officer is supposed to tell you when arresting you
Pg. 98 5th Amendment Self Incrimination – The state has to prove you are guilty beyond a reasonable doubt, and you do not have to prove it; meaning you don’t have to testify against yourself.
o Criminal lawyers don’t want their defendant on the stand to testify and be cross examined because lots of people can mess up and make yourself look guilty
Pg. 115 Diferent Methods of Defense in a criminal case
o Alibi – The most common defense; where were you on the night of the crime?
o Statute of Limitations – You only have so long to be convicted of a crime, and if you aren’t convicted within that time limit, you can’t be charged
o Self Defense – The person was acting out in self-defense because they acted out in fear for their life; their life was in danger
o Entrapment – The law authority tried to influence someone to commit a crime when there otherwise would not have been any attempt to commit that crime
o Insanity – You can test to be medically insane and unstable meaning you are unaware what your actions actually were; so what is the standard for insane? You don’t understand the nature of your act; example: baby head in the lemon squeezer.
o Gathering of Evidence: 4th Amendment – people are protected from unreasonable search and seizure; judge has to sign a search warrant if there is probable cause; if things are seized unreasonably, that evidence cannot be used at court as evidence
Pg. 117 – When a person is justly arrested and goes to court: o First step is arraignment – pleading guilty or not guilty
o The person is then indicted meaning a grand jury decides if the case is severe enough to charge the defendant and take to trial
o Bottom of pg. 117 goes over self-incrimination
Pg. 118 The Trial
o State puts on its case first
o The defendant can then cross examine
o The defendant puts on their case
o The state can cross examine
o Closing arguments
OJ Simpson is arrested on criminal charges for killing his wife, and he is found innocent
o BUT her family charges Simpson civil charges to get paid for punitive damages and compensation for dealing with the loss of a loved one; Simpson is found guilty and charged $20mil using the same evidence that found him innocent in the criminal case
Double Jeopardy – Can’t be charged and prosecuted for the same crime a second time.
White Collar Crime – Crimes committed by richer business people usually by scamming money of of their own business or other clients, etc. Not usually violent. Blue collar crimes are typically the violent crimes
o Most white collar crimes seem to not get as much attention and are treated as not as severe as a murder or crime of that nature…Miller doesn’t think it should be like this
Pg. 120 – White collar crime case…read up on it
o Embezzlement – diverting funds to yourself instead of the company Prevent this via separation of duties so people can verify each other’s actions
Companies can have insurance policies to protect them against embezzlement
o Collin Street Bakery – Corsicana, TX
CFO embezzles $15mil from a restaurant that sells fruit cakes; got detected when neighbors noticed he was living a very
extravagant life for a man who was only supposed to be on
Pg. 120 Sherman Anti-Trust Act – prevents companies from colluding with one another
o Bid rigging and collusion – when companies work together to cheat the free market and collectively price together so they all profit more
September 16, 2015
Pg. 122 Diferent Types of Financial Fraud
o False Claim Act – Got put into place because during the Civil War, a company made and sold guns to the government that had saw dust in them instead of gun powder.
Act says you can’t sell fake products or sell something and lie about what it is
o Insider Trading – Getting information that isn’t available to the public so you have an advantage to buy or sell stock before the efect hits the stock market, therefore undermining peoples’ confidence in the validity of the stock market
o Insurance Fraud – Purposely having someone do something to your stuf so you can file a claim to your insurance company to get money o Pg. 128 Money Laundering – Getting income illegally then wire transferring the money through a bunch of diferent places to make it look legitimate
could also be coming to an agreement with a business (often a restaurant) to hide the cash in that business to make the money look legitimate
The mafia is a good example of people who often money launder o Pg. 122 Mail Fraud – Sending out mail or email to people claiming to be a legitimate person who needs money for something (a lie) or who claims to invest your money, then he/she doesn’t ever return your money or do what he/she says with the money; “Nigerian Prince” o Pg. 124 RICO Act – Racketeer Influenced and Corrupt Organization Act
Let’s the government prosecute a wide range of actions in order to bring down all sorts of people affiliated with an illegal
organization; also used a lot on the mafia to bring down all the diferent members.
o Pg. 126 Security Fraud – When an individual takes money from people and either invests it in fake stocks or doesn’t invest it at all and just keeps all of the money; this also undermines the confidence people have in the stock market
Pg. 131 Sentencing Guidelines – These were made to give judges guidelines for how long to sentence someone when they commit a crime
o This keeps judges from giving an unfair punishment to a person based on some sort of bias or dislike for that person
Pg. 133&134 has a good summary and some key terms.
STUDY HIS OWN KEY TERMS ON BLACKBOARD