Josh Radclif

what is Constitutional Law?

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.

what is Personal Jurisdiction?

 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;”  

what is Oral deposition?

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

 Chapter 3

 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  

paid regardless

 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

o Witnesses

 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,  

etc.

 Punitive Damage – Money given to the plaintif on top of  

compensatory fees

 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

 Chapter 4

 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

 Commercial Speech

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  

$50,000 salary.

 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