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166 Cards in this Set

  • Front
  • Back
two major roles played by law in the business world
dispute resolution role
regulatory role
role in which the law gives people and business entities a forum to settle their differences
dispute resolution role
role in which law directs and standardizes activities that would otherwise be considered purely private interactions of individuals
regulatory role
the collection of rules and regulations that determines how the government will treat its citizens as well as how its citizens will treat the government and each other AND the enforcement there of
law
law derived from the US Constitution
Constitutional Law
another name for the Constitution
the Supreme Law of the land
legislative law, laws passed by Congress
statutory law
another name for laws passed by Congress
statues
president can create law by issuing
executive orders
the doctrine that states that previously decided cases should be followed unless there is a good, legal reason to change the previous decision
stare decisis
system in which judges rule based on what has been done before
common law
the established answer to a set of facts
precedent
courts try to interpret statutes according to . . .
legislative intent
established judicial review
Marbury v. Madison
-individual burned American flag
-charged with violating Texas law
-Supreme Court said law was unconstitutional
Texas v. Johnson
the power to declare an act of Congress or the President unconstitutional
judicial review
Supreme Court declared Flag Protection Act of 1989 prohibiting the burning of the American flag unconstitutional
United States v. Eichman
the power of the state to place restraints on the personal freedom and property rights of persons for protection or the promotion of public convenience and prosperity
police powers
all laws developed under the authority of the Constitution by Congress, the President, or federal regulations
federal law
the controversy is based on rights and duties between litigants who are private parties
private law
concerns controversies between private parties and the government
public law
designed to prevent crime and punish criminals
criminal law
law that provides remedies for individuals or entities that have been wronged
civil law
laws that define rights and duties
substantive laws
laws that define the procedural means through which violations of rights and duties are remedied
procedural laws
an area of the law developed to avoid unjust results occurring from strictly following common law
equity
an action in equity such as an injunction
equitable action
involve the payment of money
legal remedies
involve a court order to do or not do something
equitable remedies
amendment giving states powers
10th
-farmer in Massachusetts
-land foreclosures
-led armed attacks on the courthouses
Shay's Rebellion
collection of papers often used as a guide by the courts in interpreting the Constitution
Federalist Papers
those who supported the Constitution
Federalists
those who opposed the Constitution
Anti-Federalists
-immigration statute granted an administrative agency certain powers
-provision for a legislative veto that allowed either Senate OR House of Reps to veto it, no presidential veto
-unconstitutional
Immigration and Naturalization Service v. Chadha
Supreme Court says they will hear a case
writ of certiori
most significant power of Congress to regulate business
Commerce Clause
-Supreme Court determined that the commerce clause allowed Congress to legislate interstate commerce
-New York steamboat monopoly
Gibbons v. Ogden
-Congress can regulate labor relations when a work stoppage would affect interstate commerce
NLRB v. Jones & Laughlin
-Court upheld congressional control of a farmer's production of wheat b/c MANY farmers could alter interstate commodity
Wickard v. Filburn
-Maryland attempted to tax national government
-denied
McCulloch v. Maryland
-Court created the doctrine of "separate but equal"
Plessy v. Ferguson
Texas utilized this to keep blacks from voting
white primary
-Texas white primary declared unconstitutional
Smith v. Albright
-Supreme Court overruled Plessy
Brown v. Board of Education
law passed by Congress to implement the decision in Brown v. BoE
Civil Rights Act of 1964
-motel in Atlanta
-whites only policy
-interstate travel, found unconstitutional
-commerce clause used
Heart of Atlanta Motel v. United States
-Ollie's Barbecue in Alabama
-no seating for blacks
-cumulative effect of all restaurants engaging in this activity affected interstate commerce
-unconstitutional
Katzenbach v. McClung
-high schooler with gun violating Gun-Free School Zones Act
-reversed law, unconstitutional
-exceeded Congress's legislative power under commerce clause
United States v. Lopez
-Brady Handgun Violence Prevention Act
-Federal government requires chief law enforcement officer of each local jurisdiction to conduct background checks on handgun purchasers?
-NO. unconstitutional
Printz v. United States
-legality of Violence Against Women Act
-Congress had exceeded constitutional bonds
United States v. Morrison
-feds seized medicinal marijuana
-Congress DID have authorization, all that is needed is "rational basis test"
Gonzales v. Raich
when both national and state governments can pass legislation
concurrent powers
when Congress chooses to act exclusively in an area
preempt
-Oklahoma had a law prohibiting residents from other states from bringing minnows into Oklahoma
-law declared unconstitutional; not much fishing in OK
Hughes v. Oklahoma
-Maine had a law prohibiting residents from other states from bringing in bait
-upheld b/c Maine depends on fishing
Maine v. Taylor
-question of which speech is protected; you can't shout fire in a theater
Schenck v. United States
-Congress can require law schools to provide equal access to military recruiters without violating the schools' freedom of speech
Rumsfeld v. Forum for Academic and Institutional
-distinguished between official and private speech
-when public employees make statements pursuant to their official duties, they are not protected
Garcetti et. al. v. Ceballos
speech that is afforded the greatest protection under the First Amendment
political speech
speech that is subject to regulation
commercial speech
-purely commercial speech is not protected by 1st amendment
-advertising
Valentine v. Chrestensen
-Supreme Court overruled Chrestensen
-declared state statute prohibiting pharmacists from advertising prices of prescription rugs to be an invalid restriction on speech
-purely economic reason for speech does NOT remove it from constitutional protection
Virginia State Board of Pharmacy v. Virginia Consumer Council
-illustrates that the constitutional analysis is composed of a four-part test to determine whether a restriction on commercial speech unduly burdens the flow of info
Central Hudson Gas and Electric Corp. v. Public Service Commission of New York
-Court struck down a federal restriction against beer companies putting the alcohol content of the beer on their labels
Rubin v. Coors Brewing Co
-Supreme Court struck down a Massachusett's statute prohibiting corporate political speech
-there are still legitimate restrictions in business political speech though
First National Bank of Boston v. Bellotti
-Supreme Court upheld a Michigan law prohibiting corporations from using general corporate funds for independent expenditures in state political campaigns
-OKAY burden on free speech
Austin v. Michigan Chamber of Commerce
part of 1st amendment that protects individuals practice of religion
free exercise clause
part of 1st amendment that prohibits governmental establishment of an official religion
establishment clause
-County set up a manger scene
-sued by ACLU
-Court said NO to manger scene, violation of the Establishment Clause
County of Allegheny v. American Civil Liberties Union
-Court allowed Ten Commandment display b/c it was among lots of historical markers surrounding capitol
Van Orden v. Perry
-Court did NOT allow Ten Commandments display b/c the other documents displayed highlighted references to religion and to Christ
McCreary County, Kentucky, et. al. v. American Civil Liberties Union
state or local laws which regulate the types of business activities that acn be conducted on Sunday
Blue laws/ Sunday laws
-Oregon law prohibited ingestion of peyote
-Court said that an employer who fired employees who violated this law, even during religious practices, was justified
Employment Division, Department of Human Resources of the State of Oregon v. Smith
prohibits the Federal Government from substantially burdening a person's exercise of religion except when the government can demonstrate that application of the burden to the person advances a compelling governmental interest
Religious Freedom Restoration Act of 1993
-Court ruled that the government did not demonstrate at the preliminary injunction stage a compelling interest in barring the church from sacramental use of hoasca
Gonzales v. O Centro Espirita
prohibits unreasonable search and seizure w/o a warrant
4th Amendment
holds that any evidence seized improperly must be excluded from trial
Exclusionary Rule
-Court held that police have the right to enter a home w/o a warrant when they reasonably believe that an occupant is seriously injured or imminently threatened with a serious injury
Brigham City v. Stuart
-Court threw out "knock and announce" rule
Hudson v. Michigan
-Court recognized that warrantless entry and search was valid when police obtained the voluntary consent of an occupant who shares the common area
Georgia v. Randolph
warrants required of inspection of business in regulatory situations
administrative warrants
no self-incrimination AND right to due process
5th amendment
guarantees due process by the state governments
14th amendment
involves the content or meat of the law of governmental action
substantive due process
applies when one reviews the steps the gov uses to deprive anyone of life, liberty, or property
procedural due process
the taking of private property by the gov
eminent domain
-Court affirmed city's authority to take condemned property (public use)
-reminded city that undue hardships could ensue to the people who did not want to sell
-Court could enact stricter public use requirements than the minimum set forth by the courts ruling
Kelo v. City of New London
-state statute provided for compulsory sterilization of habitual criminals convicted of grand larceny
-no sterilization of criminals convicted of habitual embezzlement
-law was found unconstitutional, no logical basis for distinguishing between these perpetrators
Skinner v. Oklahoma
-court struck down Alabama tax law that taxed non resident insurance companies at a higher rate
-nota legitimate state purpose
Metropolitan Life Insurance Co. v. Ward
-TX statute outlawing persons of the same sex engaging in certain sexual conduct was unconstitutional
Lawrence v. Texas
-state statute that decreased the value of state guaranteed bonds which had been sold before passage of the statute was UNconstitutional under contracts clause
United States Trust Company of New York v. New Jersey
-state law was unconstitutional under contracts clause b/c state regulation of private pension funds altered contractual obligations of employers
Allied Structural Steel v. Spannaus
with STRICT scrutiny of regulation (involving race or other big freedoms), this is needed
compelling state interest
no state shall ... deny to any person within its jurisdiction the equal protection of the laws". ...part of 14th amendment
Equal Protection
when the government uses property for a good reason
public use
with WEAK scrutiny of regulation, this is used
rational basis test
with MEDIUM scrutiny of regulation, such as with gender or legitimacy, this is used
substantial governmental interest test
-the "First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral."
Board of Regents of the University of Wisconsin v. Southworth
-Court held that such searches are valid if, at the time of the search, the authorities "reasonably believe" the third party possesses common authority over the premises.
Illinois v. Rodriguez
-Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives
Griswold v. Connecticut
supremacy clause is found n
article vi clause 2
commerce clause is found in
article 1 section 8
Court held that the President did not have the authority to issue an order to seize and operate steel mills
Youngstown Sheet & Tube Co v. Sawyer
the process by which lawsuit issues are resolved
litigation
lowest courts on the ladder
trial courts
higher rungs of the ladder courts
appellate courts
the appealing party
appellant
the non-appealing party
appellee
this occurs before the appeals court in which both parties have a limited time to orally persuade the judges
oral argument
several hundred of these courts in TX
municipal
created by TX constitution, same level as municipal court
Justice of the Peace Court
a statutory court, the peoples court, jurisdiction up to $10k
small claims court
a court at the same level of the county court
county court at law
basic trial court for the state of TX
District court
14 of these courts in TX
Coruts of Appeals
9 members, only one in TX (2 kinds)
Court of Criminal Appeals
TX Supreme Court
general trial courts for the federal court sysstem
Federal District Courts
thirteen circuits, US wide
Federal Courts of Appeal
opinions issued by the panel of judges
panel decision
controversial cases heard by all members of the court of appeals in a given circuit, opinions referred to as
en banc
-white student denied admission to UT law
-claimed they were more qualified than minorities who were chosen
-violated 14th amendment
-damages of $1
-UT ordered not to use race as factor
Hopwood v. Texas
-university of michigan school of law
-admission policy met Bakke test
Grutter v. Bollinger
-similar university of michigan case
-minorities were given 20 points toward admission
-court said not fair
Gratz v. Bollinger
-made the Bakke test, no quotas but student body diversity is a compelling interest
Regents of University of California v. Bakke
act giving supreme court almost total discretion of which cases will be accepted for review
supreme court selections act
rule of fours
writ is issued whenever 4 justices vote to review the case
hear cases involving administrative agencies
administrative law judges
two types of jurisdiction
subject matter

territorial
federal district courts are empowerred to hear cases involving ...
federal questions
a secondary way to establish federal subject matter jurisdiction
diversity of citizenship
right of the feds to have a case removed to a federal court
removal doctrine
accomplished by serving the defendant physically with a summons/citation
in personam jurisdiction
state is given territorial jurisdiction over property located within that state and the property is the subject matter of the lawsuit
in rem jurisdiction
jurisdiction arises due to the ownership of property in another state but it is not the subject matter of the lawsuit
quasi in rem jurisdiction
the right of a defendant to be tried in a proper court within a specific geographic area
venue
trying to find a "good" jurisdiction
forum shopping
requirement that the case is tried in the proper court that is most convenient to all of the litigants
forum non conveniens rule
courts wont act until there is an actual controversy because we are in an ...
adversarial system
exceptions to the controversy requirement in the business world involve the issue of
standing
papers that are filed with the court
pleadigns
if the defendant does nothing, the plaintiff is entitle d to go to court and take a
default judgment
defendant must respond to a complaint/petition by filing an
answer
legal defenses that must be proven by the defendant
affirmative defenses
anything that would allow the defendant to be a plaintiff in an independent suit against the plaintiff
counterclaim
defendant can file a ... to bring a third party into the lawsuit
cross-action
pretrial process by which each party obtains info from the opposing party or some 3rd party
discovery
deposition can be used to
impeach
written questions which are served on teh opposing party
interrogatories
a written set of facts that one party requests the other to admit as being true
request for admissions
request that the other side produce certain requested documetns
request for production
if the plaintiff fails to sustain the burden of proof, the defendant may move for a
directed verdict
the courts technique for pushing the case toward settlement or forcing the parties to prepare for trial
pretrial conferencd
when the jury renders a verdict against the one who wanted the directed verdict; this party can request the court to enter a
judgment notwithstanding the verdict /judgment n.o.v
after verdict, losign party can file a
motion for new trial
when the appellate court sends the case back to the lower court
remand
3 alternatives to litigation
negotiation
mediation
arbitration
-decision concerning arbitration of private securities fraud claims arising under the Securities Exchange Act of 1934
-upheld Wilko v. Swan that the nonwaiver provisions of the Securities Act of 1933 prevented the mandatory arbitration of such claims
Shearson/American Express, Inc. v McMahon
request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror
challenge for cause
a statutory grant of jurisdiction to local courts over foreign ("foreign" meaning out-of-state) defendants
long arm jurisdiction
A defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.
peremptory challenge
A court order, direction, decree, or command to protect a person from further harassment
protective order
states that the deadline for removing a case from state court to federal court is 30 days from the day that any defendant receives a copy of notice of removal of a civil action or proceeding
removal doctrine
A custom whereby presidential appointments are confirmed only if there is no objection to them by the senators from the appointee's state
senatorial courtesy
the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body's exercise of its jurisdiction over that person
substituted service
A preliminary examination of a witness or a juror by a judge or counsel.
voire dire