Constitutional Law and Legal Principles, Exams of Government & Non-Profit Accounting

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MGMT 311 Hailey (non-honors) - Exam 1 with complete solutions Law consists of - ANSWER-enforceable rules governing relationships among individuals and between individuals and their society Four Sources of Law - ANSWER--Constitutions -Statutes (Acts) -Administrative Rules/Regs -Common Law Constitutions - ANSWER-establish organization, powers, and limits of governments Statutory Law (Acts) - ANSWER-Law passed by the U.S. Congress or state legislatures -Federal statutes: apply to everyone nationwide -State statutes: apply only to people within borders of the state -Found in federal and state code of laws (divided by subject) (Ex: Civil Rights Act) -Cannot violate constitutional law Administrative Law - ANSWER--can have local, state, or federal agencies Common Law - ANSWER--created by interpreting the other 3 types -case law -judge made law Doctrine of Stare Decisis - ANSWER-"to stand on decided cases" -other thing William the Conqueror created -use of precedent (similar past cases) that judges are obligated to follow if established by a higher court in their jurisdiction Functions of Stare Decisis - ANSWER--Accomplishes court efficiency -Creates a more just and uniform system -Makes the law stable and predictable -Allows us to use lessons from the past Binding Precedent - ANSWER-Must follow Persuasive Precedent - ANSWER-Use other similar cases from other jurisdictions to settle precedences Departures from Precedent - ANSWER--Ruling is incorrect in the precedent -Outdated or interpretation has changed ex. Brown v. Board of Education overruled Plessy v. Ferguson Cases of First Impression - ANSWER-There is no legal precedent on which to base a decision, can look at other jurisdictions but are not binding Factors used when court is faced w/ case of first impression or when conflicting precedents exist - ANSWER-1. Persuasive precedent 2. Legal principals and policies underlying previous court decisions and current statutes 3. Fairness 4. Social values and customs 5. Public policy 6. Social science data Most common law classification systems - ANSWER-- Substantive vs. Procedural - Public vs. Private (who the parties are in the case) - Civil vs. Criminal Substantive - ANSWER--define and describe your rights -refer to subject areas of law Procedural - ANSWER--how you pursue enforcing your rights under substantive law ex. Miranda Rights Public - ANSWER-involve the government Private - ANSWER-don't involve the government Civil - ANSWER-involve the rights b/w people or b/w people and their government in non-criminal matters Motion for judgment on the pleadings - ANSWER-asking judge to read case and make a judgement; very rare Motion for summary judgement - ANSWER-- no disagreement on facts - judge can use evidence other than pleadings (discovery, sworn affidavits, certified documents) - only granted if no genuine questions of fact exist and only question is a question of law Five Tools of Discovery - ANSWER-1. Depositions (can be used for sworn testament) 2. Interrogations 3. Requests for Admissions (admit or deny: prove that it's not true) 4. Requests for Documents and Other Tangible Things 5. Request for Physical or Mental Examinations (must be an issue in the case) Jury Selection - ANSWER-- use questions to rule people out County/Local: 6 selected District: 12 selected U.S. Constitution - ANSWER--supreme law of the land -creates national government -10th amendment reserves all powers not granted to federal government to states State Constitutions - ANSWER--Create state governments -highest form of law within borders of that state -subject to state constitution Ordinances - ANSWER--form of statutory law that applies to municipal or county governments -govern matters not covered by state or federal laws -cannot violate constitutions Uniform Laws - ANSWER--form of statutory law -model statutes for states to consider adopting -an attempt to create uniformity in a subject area -state legislatures can accept or reject -if adopted, law becomes part of statutory law Uniform Commercial Code - ANSWER-most accepted uniform law, for commercial sales contracts FDA, SEC, EPA - ANSWER-examples of administrative agencies Agency functions - ANSWER-to make rules, to investigate & enforce, and to judge of their rules Common Law History - ANSWER--norman invasion of 1066 -William the Conqueror created stare decisis and early courts Early Courts at Law - ANSWER--"king's court" -hear civil cases where remedy was something of value -created by William the Conqueror Legal Remedies - ANSWER-what you win or lose in monetary damages, money is remedy is possible Compensatory Damages - ANSWER--designed to restore plaintiff -Special damages -General damages -most cases only get compensatory Special Damages - ANSWER--quantifiable -loss of time (earnings) -loss of money (medical bills) -property damages (damage to car) General Damages - ANSWER--type where you can have difference of opinion -pain and suffering (physical) -injury to reputation (defamation) -mental anguish (emotions) -disfigurement (lost arm) -loss of earning capacity (ability to earn in future) Punitive/Exemplary Damages - ANSWER--legal remedies meant to punish wrongdoer -given in addition to compensatory Nominal Damages - ANSWER-A small monetary award (often one dollar) granted to a plaintiff when no actual damage was suffered Specific Performance - ANSWER--type of equitable remedy -breach of contract situation -court order requiring breaching party to perform contract as promised -item in contract must be over 1-of-a-kind item (Ex: land) injunction - ANSWER--an authoritative warning or order for someone to perform an act of stop performing an act -temporary: prior to litigation -permanent: after litigation Rescission - ANSWER-termination of contract Equitable Maxims - ANSWER-guiding principles that help courts fashion remedies Legal/Ethical Remedies today - ANSWER-judges are doing similar things as in the past Precedent - ANSWER-similar past cases, high courts have power to overrule Departures from precedent - ANSWER--if it was incorrect -if it is outdated Plessy v. Ferguson (1896) - ANSWER-Established separate but equal is constitutional Brown v. Board of Education (1954) - ANSWER-declared that separate but equal is unconstitutional, overturned the precedent and ordered all public schools desegregated Legal Reasoning (IRAC) - ANSWER-Issue, Rule, Application, Conclusion No one right answer sometimes - ANSWER-1. good arguments can be made on both sides 2. laws can be flexibly interpreted 3. personal beliefs and moral philosophies play a role -ALWAYS/NEVER are very rare Common Law Today - ANSWER-restatements cover common law in subject areas Classifications of Law - ANSWER-numerous ways to classify, not mutually exclusive Main Purpose of Civil Law - ANSWER-compensation Main Purpose of Criminal Law - ANSWER-punishment Burden of Proof in Civil Law - ANSWER-plaintiff "by a preponderance of evidence" Gonzales v. Raich (2005) - ANSWER-2 terminally ill women prescribed marijuana, grew the plant, arrested by the feds, feds can enforce federal law if they are noncommercial activities taking place wholly within state's borders Dormant Commerce Clause - ANSWER-states do not have the authority to regulate interstate commerce Courts must balance states interests in purposes of the regulation against the burden places on interstate commercE - ANSWER-When state regulations can affect interstate commerce: Raymond Motor Transportation Inc. v. Rice - ANSWER-The burden on trucks changing lengths for different states is greater than the burden on the state Supremacy Clause - ANSWER-Constitution is the supreme law of the land Preemption - ANSWER--when Congress chooses to act exclusively in area that could be viewed as concurrent area -present when there is conflict between state and federal law Taxing Power - ANSWER-Congress has the power to tax, but must be uniform throughout the U.S., courts allow tax if it is valid revenue-raising measure Spending Power - ANSWER-- Congress pays debts and provides for defense and general welfare of US - Rarely challenged - problem with standing- plaintiff must show a direct and immediate personal injury to challenge federal spending power - Congress can spend revenues to promote any objective it deems worthwhile Bill of Rights - ANSWER--First 10 amendments -Originally only applied to feds -14th amendment incorporated to states -Supreme Court is final interpreter of Constitution 1st Amendment - Freedom of Speech - ANSWER-say or write just about anything you want Symbolic Speech - ANSWER-gestures, movements, articles of clothing Texas v. Johnson (1989) - ANSWER--Struck down Texas law that banned flag burning, which is a protected form of symbolic speech according to Supreme Court -did not pass strict scrutiny of substantive due process Reasonable Restrictions - ANSWER--Expression (oral, written, or symbolized by conduct) is subject to reasonable restrictions -balancing of rights of citizens vs. government's duty to protect its citizens (case-by- case basis) -laws that restrict content of speech must serve a compelling state interest and be narrowly written to achieve that interest Content Neutral Restrictions - ANSWER-control over symbolic speech, time-place-and- manner laws that control place and manner of speech Bong Hits 4 Jesus (2007) - ANSWER--H.S. students across street from school and hold this banner -gets expelled and takes it to Supreme Court as a minor -but school can protect speech to protect children Corporate Political Speech - ANSWER-First Amendment protects a corporation's right to speak out on political issues Commercial Speech - ANSWER-Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court. -the speech itself is lawful and not misleading -law seeks to implement a substantial government interest "reasonable fit" between government interest in limiting speech and restriction chosen to accomplish the objective -law directly advances that interest -and law goes no further than necessary to accomplish the objective - ANSWER-when restriction on commercial speech is ok: Bad Frog Brewery, Inc. v. New York State Liquor Authority - ANSWER-label has bullfrog with middle finger, outlawed by liquor authority, bad frog sued because it is not misleading and is not narrowingly drawn Unprotected Speech - ANSWER-defamation, lewd and obscene speech, threatening speech Defamation - ANSWER-lies that harm someone's reputation Lewd and Obscene Speech - ANSWER-1) Supreme Court has difficulty defining this 2) Left to local standards 3) Child pornography is completely banned 4) Online obscenity has been hard to regulate due to free speech concerns Threatening Speech - ANSWER-anything that threatens or incites violence Freedom of Religion: Establishment Clause - ANSWER--prohibits government from establishing religion or use religion -federal/state regulations can have an impact on religion as long as it does not place a significant burden on religion (still can have religious aspects) -1st amendment does not require a complete separation of church and state (no hostility allowed) Freedom of Religion: Free Exercise Clause - ANSWER--if law is contrary to a person's religious beliefs, exemptions are often made to accommodate those beliefs -religious beliefs that work against public policy and welfare, government can act -test: must be some demonstrable relationship between practice at issue and religion Search and Seizure - ANSWER--4th amendment -government officers must have search warrant through probable cause to believe the search will find specific illegal activity -General Warrants are prohibited: needs particular description of what is to be searched -if items are likely to be removed before warrant -plain view -consent - ANSWER-Exceptions to Search Warrant Requirement less probably cause is necessary or no warrant needed if contamintaed foods or highly regulated industry - ANSWER-Searches of Business Self-Incrimination - ANSWER--5th amendment -don't have to answer question that would incriminate you -applies to sole proprietors but not corporations Due Process - ANSWER-fairness under the law, 5th and 14th amendments Procedural Due Process - ANSWER-strict procedural safeguards for government to be able to take away life, liberty, or property, treating you fairly in criminal process Substantive Due Process - ANSWER-focus is on content of legislation "power over people or businesses" OR "power over property" AND "power over type of case" - ANSWER-Jurisdiction structure individuals who live in state, businesses in state they are created and do most of business - ANSWER-In Personam Jurisdiction for residents of state Long Arm Jurisdiction - ANSWER-The personal jurisdiction that a state acquires over a nonresident defendant because of his or her purposeful contact with the state minimum contacts - ANSWER-in Long-arm jurisdiction, defendant must have minimum contacts for individual - ANSWER-they injure someone in state, breach or form contract in state, come to state regularly to do business minimum contacts for corporation - ANSWER-do business in state, advertise/sell in state, place goods in stream of commerce with expectation of purchase in state (suppliers) default judgement - ANSWER-when defendant is absent, plaintiff wins automatically Subject Matter Jurisdiction - ANSWER-limits on types of cases a court can hear, defined by statute or constitutional provision creating the court Bankruptcy Court - ANSWER-example of federal court with limited jurisdiction probate court - ANSWER-example of state court with limited jurisdiction subject of lawsuit, amount of money in controversy, if criminal the seriousness of the crime, whether it's a trial or an appeal - ANSWER-What limits subject matter jurisdiction Original Jurisdiction - ANSWER-a court when they are heading a case for the very first time Appellate Jurisdiction - ANSWER-The authority of a court to review decisions made by lower courts Federal questions or diversity of citizenship - ANSWER-Subject Matter Jurisdiction of Federal Courts based on: Federal Questions - ANSWER-come from federal sources of law plaintiff and defendant must be citizens/residents of different states AND dollar amount in controversy must exceed $75,000 - ANSWER-Diversity of Citizenship breach of contract, personal injury, product liability - ANSWER-examples of diversity of citizenship that is never a federal question bankruptcy, patents & copyrights - ANSWER-Federal exclusive jurisdiction examples divorce and adoption - ANSWER-state exclusive jurisdiction examples -substantial business conducted over internet -some interactivity through a website -passive advertising - ANSWER-Jurisdiction in Cyberspace use the Sliding Scale Standard for three types of internet business contracts: interest of justice (fair trial), convenience of parties (significant inconvenience) - ANSWER-When courts can change venue for: after in personam jurisdiction - ANSWER-when venue is chosen True - ANSWER-Texas is the only state with 2 high courts US District Courts, US Court of Appeals, US Supreme Court - ANSWER-Federal Court System Structure 13, TX is 5th - ANSWER-number of U.S. district courts? which number is TX? Negotiation - ANSWER-can happen without filing lawsuit, simple as talking between parties Mediation - ANSWER-negotiation to resolve differences conducted by some impartial party Small Claims Court - ANSWER-less than or equal to $10,000, peoples courts, plaintiff would have hard time getting lawyer, no court reward, really cannot appeal Justice of the Peace Courts - ANSWER-civil and criminal jurisdiction, every country divided into precincts and each precinct has these, cannot appeal Municipal Court - ANSWER-city court with limited criminal jurisdiction Constitutional County Courts - ANSWER-limited CIVIL AND CRIMINAL jurisdiction (1 in each County) based on population County Courts at Law - ANSWER-Limited Civil and/or Criminal Jurisdiction above constitutional county courts Statutory Probate Courts - ANSWER-limited to probate matters all the county trial courts - ANSWER-Harris county courts county courts at law and constitutional county courts - ANSWER-Brazos county courts constitutional country court - ANSWER-Burleson County courts disputes from 0 to $200,000 - ANSWER-Brazos County Courts at law subject matter jurisdiction felonies and disputes of $200,000.01 or more - ANSWER-Brazos County 3 district courts subject matter jurisdiction district courts - ANSWER-State trial courts of general civil and criminal jurisdiction Court of Appeals - ANSWER-intermediate appellate jurisdiction, dont get cases from local trial courts 14 courts/districts - ANSWER-# of courts of appeals in TX Court of Criminal Appeals - ANSWER-TX High court for criminal jurisdiction Texas Supreme Court - ANSWER-TX High court for civil jurisdiction 9 - ANSWER-# of justices/judges in a tx high court Fixed Fees - ANSWER-attorney fees used more for document protection Ex: real estate Hourly fees - ANSWER-attorney fees used to get bill for they worked on Contingency Fees - ANSWER-attorney fees for % of win EX: personal injury