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Business Law Midterm Assignment

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MBA - Business Law Midterm

INTRO TO LAW CH. 1-5

Define Law: Set of enforceable laws that govern relationships between private parties and between individuals and society.

Know 15 Sources of Law

State

Federal

Constitution

Constitution

Statutes

Statutes

Civil Code

Case Law (Stare Decisis)

Case Law (Stare Decisis)

Regulations

Regulations

Executive Orders

Executive Orders

Other: Natural Law, Customs, International Law, Treaties, Private Party Law, Legal Scholars, Theology

*Natural Law and Customs: are the only 2 that are unwritten

Natural Law v. Positive Law  Were Grotius and Aristotle Correct?

Natural Law  

  • Denotes a system of moral and ethical principles that are inherent in human nature & that people can discover through the use of natural intelligence
  • “Human rights” violations appeal to the notion of natural law.
  • Aspirational = what the law should be, it is not written
  • Criticisms include: That it is unpredictable, lack of uniformity, too vague.

Positive Law

  • Required to be in writing (ex. Criminal Law)
  • Written law of a given society at a particular point in time
  • Gravitates to natural, but we never achieve it
  • Does not have to be by legislation

Civil Law v. Common Law

Civil Law (Europe, Latin America, half of Africa, Louisiana)

  • Based on the Civil Code (Source of Law)
  • Law is in a book, follows the rules
  • Based on code and not on cases (in the US, only LA)

Common Law

  • Based on Case Law (Source of Law)
  • Law is based on previous case decisions
  • Case Law: “Stare Decisis” judges are obligated to follow precedents established within their jurisdiction

Alternative Dispute Resolutions – Know three types: negotiation, mediation, arbitration.  

  1. Negotiation: Attempt to settle a dispute outside of court without attorney’s to represent them
  2. Arbitration: Settling of a dispute by submitting it to a disinterested third party other than a court who renders a decision.  Decision may or may not be legally binding depending on the terms.  Binding unless fraud involved, hard to overturn, used a lot in international contracts
  3. Mediation: Resolves disputes outside of court using a neutral third party called a mediator.  He acts as a communications agent between the parties and suggests ways they may be able to resolve their dispute. Non-binding, just helping make a decision, a facilitator.  

State/Federal courts – which is more powerful? Depends.

  • Federal Judiciary has limited power, but that power is supreme.  (“Limited” Subject Matter Jurisdiction)
  • State courts can hear virtually any type of case (“General” Subject Matter Jurisdiction)
  • Know 4 Cases when Federal Courts have Subject Matter Jurisdiction:
  1. Federal Law Issue

  • Constitution (i.e. Commerce Clause, acts of Congress or treaties       -----or-----
  1. Diversity of Citizenship and >$75,000

  • Plaintiff and defendant are residents of different states.  Federal court offers more objectivity.
  • Amount in question is more than $75,000.  Helps to limit cases to only serious cases.
  • Fed Courts can hear cases concerning state law but generally refrain from cases dealing with issues such as Matrimonial Regimes which is state specific.  

Federal Courts have Exclusive Jurisdiction over most:

  • 3. Bankruptcy    4. Federal Income Tax Cases    5. Maritime/Admiralty Cases
  • States courts cannot hear cases involving these issues.

  • State Cases – General SMJ
  • State can hear almost anything!
  • Can’t hear the case if federal courts have exclusive jurisdiction over the matter.
  • A lot of constitutional cases start in state court.
  • State Courts hear cases on: Child Custody, Tort Litigation, Contract Question

All federal judges are appointed by president of U.S. with advice/consent of the senate (impartiality).

Can a state interpret and use the federal constitution? Yes, because they have general subject matter jurisdiction.

State Action= to be a constitutional action, a government party must be involved.  Ex. Public v. Private School

Elements of a lawsuit:

[pic 1]

  1. Cause of Action: Does the situation give rise to one or more bases for suing; is one entitled to a remedy in court?  (ex: do we have a tort, breach of contract, or other claim)

Fed Question? State Question? Contract? Tort?

  1. Right of Action: Person with the right to bring a particular case to court.  Would stretch to only spouse and maybe children/ parents.  Standing – Assuming a cause of action, does this particular person have the right to bring the case?
  2. Subject matter jurisdiction: Power to speak the law.  (federal court or state court)
  3. Personal Jurisdiction: Long Arm Statute: Minimal Contacts and Sliding Scale/ In Rem.

Minimum Contacts= due process issue, thus constitutionally required.  

Sliding Scale= for web and internet activity.  

In Rem= can attach to property owned within jurisdiction up to the value.

  1. Venue: The most logical place to hear a case of the possible forums (where the evidence, witnesses, etc.)

Personal Jurisdiction and Venue can be waived.

Court Systems

  • The trial, appellate, and supreme courts.  Approx 80% of trial cases are upheld on appeal.  A State Supreme Court may hear less than 2% of cases that are requested.
  • Trial Court is the fact finder “Questions of Fact”.  
  • Appellate and Supreme on look at only the law “Questions of Law”.
  • State Courts:  Trial – judge and/or jury.  Appellate – 3 judge panel or en banc.  State Supreme Court
  • Federal Courts: Trial – judge and/or jury.  Appellate – 3 judge panel or en banc. US Supreme Court

The Constitution:

Our Federal Constitution: Articles I, II & III.  Our Bill of Right is the first 10 Amendments.  

Please know at least 5 of the Bill of Rights.

  • 1st  Amendment: Freedom of religion, speech, press, peaceful assembly, and to petition the government.
  • 4th  Amendment: Prohibits unreasonable search & seizure of person or property.
  • 5th  Amendment: Prohibits self-incrimination & double jeopardy
  • 10th  Amendment: Those powers neither delegated to the federal gov’t nor denied to the states are reserved for the states.
  • 14th Amendment: Hooks all states into our constitutional mandates

Protections= HUMANS > corporations (must be a compelling reason to discriminate against humans)

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