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What is law? what is the purpose of law? -- Answer ✔✔ - enforced via legal system
- purpose: standards, accountability, justice, security, protection, punishment Criminal Law -- Answer ✔✔ The branch of law that defines and punishes wrongful actions committed against the public. Cyberlaw -- Answer ✔✔ An informal term used to refer to all laws governing electronic communications and transactions, conducted via the Internet. jurisprudence -- Answer ✔✔ the science or philosophy of law Persuasive Authority -- Answer ✔✔ Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision. Procedural Law -- Answer ✔✔ Law that establishes the methods of enforcing the rights established by substantive law. stare decisis -- Answer ✔✔ A common law doctrine under which judges are obligated to follow the precedents established in prior decisions
Statutory Law -- Answer ✔✔ The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law). Substantive Law -- Answer ✔✔ Law that defines, describes, regulates, and creates legal rights and obligations. Substantive Law vs. Procedural Law -- Answer ✔✔ Substantive Law: Defines legal relationship of people with other people or between them and the state. Procedural Law: The method and means by which substantive law is made and administered. Uniform Law -- Answer ✔✔ A model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute. in both civil and criminal cases the defendant has ________________ ________________________ unless they file a counter claim -- Answer ✔✔ in both civil and criminal cases the defendant has NO BURDEN OF PROOF unless they file a counter claim true or false In 90% of appeals the appellate court affirms what happens at trial court? -- Answer ✔✔ true In 90% of appeals the appellate court affirms what happens at trial court what does it mean to remand a case? -- Answer ✔✔ kick case back down to trial court to retry a case again
Separation of Powers: 3 branches that provide checks and balances -- Answer ✔✔ legislative:
- congress
- creates laws executive:
- president/agencies
- enforces laws judicial
- federal courts
- interprets laws Commerce Clause (Article 1, Section 8) -- Answer ✔✔ - creates congress/legislative branch
- grants congress power to regulate " commerce among the several states (interstate commerce) defined in Gibbons v Ogden (1824) as activities that substantially affect interstate commerce" commerce clause today:
- national government can regulate most business activities
- why? b/c of GIbbons v Ogden; intrastate commerce affects interstate commerce Supremacy Clause (Article VI) -- Answer ✔✔ - all federal laws, the Constitution, and treaties "shall be the supreme law of the land"
- in case of direct conflict between state and federal law, state law is invalid
- preemption: even if not a direct conflict, a state/local law that substantially conflicts with a valid federal statute or regulation will be preempted preemption: -- Answer ✔✔ A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws. Levels of speech protection -- Answer ✔✔ 1.) strict scrutiny (fully protected speech): political speech, including symbolic 2.) intermediate scrutiny (commercial speech ):
- speech for purpose of making a profit
- protected since 1976 but receives less protection than political speech
- public safety always passes intermediate scrutiny but not always strict scrutiny 3.) Unprotected Speech
- certain types of speech are not protected by first amendment (ex: defamation, fighting words or inciting violence, obscenity (child porn) restrictions on political speech are constitutional only if the law: -- Answer ✔✔ - advances a compelling government interest (ex: national security) and the law is narrowly tailored
- restrictions are permitted if restriction is content neutral
- restrictions must not primarily suppress the message binding authority -- Answer ✔✔ any source of law that a court must follow when deciding a case case law -- Answer ✔✔ - the rules of law announced in court decisions
- "of the court"
- doesn't indicate which judge wrote the opinion Areas of law that may affect business decision making -- Answer ✔✔ - contracts
- torts ( civil wrong that causes loss or harm)
- business organizations
- employee discrimination
- business crimes
- labor laws
- administrative agency regulations why study business law -- Answer ✔✔ studies show that the majority of business legal decisions are made by mid-level management not by corporate counsel dual system of u.s. courts (state vs federal courts) -- Answer ✔✔ state courts:
- 50 state court systems (each state has its own judicial branch)
- handles 95% of cases
- hears cases involving disputes under state laws
- general jurisdiction federal courts
- handles 5% of cases
- limited jurisdiction
- handles cases involving violation of constitution, federal laws, or disputes over contracts or personal injuries involving citizens from different states and damages more than 75K (aka diversity jurisdiction)
- includes US district courts, circuit courts of appeal, and US supreme court
Both state and federal courts hear criminal and civil cases......... what is the difference?? -- Answer ✔✔ - criminal cases usually involve jail time
- civil cases usually award money
- in criminal cases the GOVERNMENT is ALWAYS involved
- private persons are on both sides in civil cases examples of civil and criminal cases -- Answer ✔✔ example of civil cases:
- business to business
- breach of contract
- filing a lawsuit
- sues
- private individual vs business/manufacturer examples of criminal cases:
- charged (only the government can charge you) examples of both:
- theft
- assault Sources of US Law -- Answer ✔✔ 1.) Constitutional Law US Constitution & state constitutions 2.) Statutory Law federal laws (statues- laws passed by legislators (congress) & state laws ( statues passed by state legislators) 3.) Administrative Law Federal Administrative regulations & state administrative regulations
a. in state residents or state in which company does business ( or has principal or state of incorporation) b. out-of-state residents and business minimum contacts test 2.) Subject Matter Jurisdiction
- rules regarding types of cases a court can hear cyber jurisdiction -- Answer ✔✔ - courts have developed a "sliding scale" standard to determine when they can exercise personal jurisdiction over out of state defendant based on their web activities
- whether a court has authority depends on jurisdictions interaction with the party selling products online doesn't constitute minimum contact Trial vs. Appellate Courts -- Answer ✔✔ Trial Courts:
- both civil and criminal
- almost all cases start here; where case is filled and evidence is permitted
- 90% of cases never go to trial (ex plea bargain for criminal cases ) Appellate Courts:
- most state and federal courts have two levels of appellate courts: (1) intermediate court of appeals (handles all/most of appeals from trial courts , (2) supreme court (final court of appeals)
- no evidence or witnesses only briefs and oral arguments
- unanimous and majority opinion creates precedent
- descenting opinion written by minority judge
- final judgement is determined by a majority of a panel of apellate judges American Court System Flow Chart -- Answer ✔✔ US Supreme Court *<-------- State Highest Court of
^ Appeals | ^ US Circuit Court | ^ State Intermediate Court of | Appeals US District Courts ^ | State Trial Courts
- only in cases involving a federal question or US Constitution can you appeal from highest state court to US Supreme Court * Civil Litigation Process -- Answer ✔✔ 1. Pleadings
- plaintiff files first called a complaint
- defendant will be served/notified of the plaintiffs complaint and can answer or file a counterclaim
- Pretrial Motions
- Discovery
- Pretrial Conference
- Jury Selection
- if either side requests a jury trial than there will be a jury)
- Trial
- plaintiff goes first
- plaintiff has to convince the defendant is guilty beyond reasonable doubt
- criminal case: DA has to prove beyond a reasonable doubt
- preponderance of evidence: plaintiff has to prove "more likely than not" the defendant committed a "Crime" (civil case) ; 51%
- Post-trial motions
- Appeal (appellate court can affirm, reverse, remand, or modify)
motion on the ground that the other party has not produced sufficient evidence to support her or his claim. motion for a new trial -- Answer ✔✔ A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice. motion for judgment n.o.v. -- Answer ✔✔ - A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury's verdict against him or her was unreasonable and erroneous
- latin non obstante verdeicto = motwithstanding the verdict. motion for judgment on the pleadings -- Answer ✔✔ - A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial.
- The motion will be granted only if the parties agree on the facts and the only question is how the law applies to the facts
- judge bases decision solely on the pleadings motion for summary judgment -- Answer ✔✔ A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings
- will be granted only if no facts are in dispute and the sole question is a question of law
motion to dismiss -- Answer ✔✔ A pleading in which a defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff's claim to state a cause of action has no basis in law. Probate Court -- Answer ✔✔ A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate. reply -- Answer ✔✔ Procedurally, a plaintiff's response to a defendant's answer. rule of four -- Answer ✔✔ A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ. summons -- Answer ✔✔ A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. voir dire -- Answer ✔✔ An important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors. writ of certiorari -- Answer ✔✔ A writ from a higher court asking a lower court for the record of a case. Test requirements for strict scrutiny constitutionality -- Answer ✔✔ 1.) law advances a compelling government interest (ex: national security) 2.) the law is narrowly tailored
b. substantive due process
- due process refers to both fair process and fair regulation free exercise clause codified into federal laws -- Answer ✔✔ - title VII: employers cannot discriminate and must make reasonable accommodations for employee religious beliefs
- religious freedom restoration act can't sue under free exercise unless your employer is the government what are the 2 types of due process: -- Answer ✔✔ a. procedural due process b. substantive due process
- due process refers to both fair process and fair regulation Privacy -- Answer ✔✔ - word privacy appears nowhere in constitution
- privacy is a fundamental right not expressly found in the constitution but derived from the 1st, 4th, 5th, and 14th amendment
- B/c it is a fundamental right, laws infringing upon privacy must pass the strict scrutiny test (However this only applies to the government and not private employers what amendments is privacy derived from -- Answer ✔✔ 1st, 4th, 5th, and 14th amendment
equal protection clause -- Answer ✔✔ The provision in the Fourteenth Amendment that requires state governments to treat similarly situated individuals in a similar manner. police powers -- Answer ✔✔ Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare. case example 1.2 Brown v. Board of Education of Topeka, -- Answer ✔✔ In Brown v. Board of Education of Topeka, the United States Supreme Court expressly overturned precedent when it concluded that separate educational facilities for whites and blacks, which had been upheld as constitutional in numerous previous cases, were inherently unequal. ex: 1.4 court of law vs court of equity -- Answer ✔✔ A plaintiff might ask a court of equity to order the defendant to perform within the terms of a contract. ----- A court of law could not issue such an order because its remedies were limited to the payment of money or property as compensation for damages. ------A court of equity, however, could issue a decree for specific performance—an order to perform what was promised. ----- A court of equity could also issue an injunction, directing a party to do or refrain from doing a particular act. ------- In certain cases, a court of equity could allow for the rescission (cancellation) of the contract, thereby returning the parties to the positions that they held prior to the contract's formation. some of the most significant equitable principles and maxims: -- Answer ✔✔ 1). Whoever seeks equity must do equity. (Anyone who wishes to be treated fairly must treat others fairly.) 2.) Where there is equal equity, the law must prevail. (The law will determine the outcome of a controversy in which the merits of both sides are equal.)
different classifications of law (5) -- Answer ✔✔ - substantive vs procedural
- federal vs state
- private vs public
- civil vs criminal
- national and international cyberlaw not a classification common law vs civil law systems -- Answer ✔✔ - in a common law system, judges must abide by binding authority
- in a common law system judges try to decide cases in similar ways
- in a civil law system judges are not binded by precedents in other similar cases example 3.1 personam (personal jurisdiction) vs rem jurisdiction (jurisidiction over property w/in its boundaries) -- Answer ✔✔ A dispute arises over the ownership of a boat in Fort Lauderdale, Florida. The boat is owned by an Ohio resident, over whom a Florida court normally cannot exercise personal jurisdiction. The other party to the dispute is a resident of Nebraska.
In this situation, a lawsuit could be brought in a Florida state court on the basis of rem jurisdiction case example 3.2 long arm jurisdiction -- Answer ✔✔ an Xbox game system caught fire in Bonnie Broquet's home in Texas and caused substantial personal injuries. Broquet filed a lawsuit in a Texas court against Ji-Haw Industrial Company, a nonresident company that made the Xbox components. Broquet alleged that Ji-Haw's components were defective and had caused the fire. Ji-Haw argued that the Texas court lacked jurisdiction over it, but in 2008, a state appellate court held that the Texas long arm statute authorized the exercise of jurisdiction over the out-of-state defendant example 3.3 sufficient minimum contact -- Answer ✔✔ Sharon Mills, a California resident, forms a corporation to distribute a documentary. Brad Cole who lives in Ohio, loans the corporation funds that he borrows from an Ohio bank. A year later, the film is still not completed. Mills agrees to repay Cole's loan in a contract arranged through phone calls and correspondence between California and Ohio. When Mills does not repay the loan, Cole files a lawsuit in an Ohio court. In this situation, the Ohio court can likely exercise jurisdiction over Mills because her phone calls and letters have established sufficient contacts with the state of Ohio.
