Business Law Exam 1, Business Law Exam study Guide With Complete Solution

Common Law - Answer Rules are not written down. The Law used by the United States. Civil Law - Answer The most common out of the System of Laws. Has specific rules and regulations and is more strucured. Used by 150 countries. Criminal Law (plaintiff v. defendant) - Answer Where the plaintiff is the government and the defendent is the criminal. Civil Law (plaintiff v. defendant) - Answer Where the plaintiff is the victim (normally wants money) and the defendant is the wrong doer. Burden of Proof (criminal case) - Answer The burden of proving the defendant's guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt. Burden of Proof (civil case) - Answer The plaintiff has the burden of proving his case by a preponderance of the evidence. The scale only has to favor one side a little more than the other. Double Jeopardy - Answer If new evidence comes up after being charged as not guilty, it doesn't matter, even if tried for something other than murder. However, it doesnt protect you from being prosicuted anothern sovereign. (the 5th amendment) ex. Casie Anderson was charged by Flordia as not guilty but the USA could charge her as guilty. Can someone who is found not guilty in a criminal court be sued in civil court? - Answer Yes. (ex. OJ Simpson) Sources of Law - Answer Constitutional, Legislation, Administrative Regulations, Executive Order, and Case Law (aka common law). Constitutional Law - Answer State law and federal law. Legislation (statutory law) - Answer Federal (passed by congress), State (passed by state legislator) , and Local. If the judiciary interprets the law a certain way, can the legislator "change" the law? - Answer Yes. -If legislation conflicts with the constitution, which one controls? -Which branch of government makes this determination? -What famous U.S. Supreme Court case first stated these two ideas? - Answer -The constitution. -The judicial branch. - Marbury v. Madison, 1803 Found in the code of federal regulations ("CRF") - Answer Administrative Law Executive Orders - Answer Issued by the president of the United States. (ex. Obama stopped the deportations of immigrants brought over as children.) Can executive orders be repealed by congress? - Answer Yes. They have the power to repeal executive orders but its a lot of work. Based on the doctrine of "stare decisions. (let the decisions stand)" - Answer Case law (common law). Does one state have to follow precedents in other states? - Answer No. State courts and their right to interpret state law. - Answer On matters of state law, the state's courts are supreme. A precedent can be overturned. - Answer Stare decisis channels the law. Stare Decisis - Answer Legal Precedent Defendant lawyer payment method - Answer Hourly Plaintiff lawyer payment method - Answer Contingency (paid only if they win the case, and then a % of the amount recovered.) Ways to reduce litigation - Answer -use the "Canada" rule- no contingency fee. -the "loser pay" rule -Arkansas: breach of contract cases only -Discouraging frivolous lawsuits: "rule 11" Role of the Jury - Answer rules on matters of fact Role of the Judge - Answer rules on matter of law Trial Courts - Answer orignal jurisdiction, judge, jury, witnesses Appellate Courts - Answer between 3 and 9 judges. No witnesses, no jury, no new evidence. How are State judges chosen? - Answer either elected or appointed How are Missouri plan judges chosen? - Answer appointed, and then retained by vote How are Federal judges chosen? - Answer appointed by president and confirmed by senate Jurisdiction - Answer The power of a court to hear a (civil) case. Jurisdiction over the person - Answer -defendant is a resident of the state in question. -if a non-resident, then the "long arm statue" might give jurisdiction. Jurisdiction over the person in cyberspace - Answer basic rule: a business has established "minimum contacts" if they have a physical presence (store or office) in a state, or has targeted the market of a particular state. The structure of federal courts - Answer -District Courts -Court of Appeals -U.S. Supreme Court The structure of state courts - Answer -State supreme court -Court of appeals -Trial court Federal Court Jurisdiction - Answer Federal courts: ALWAYS hear cases where the US is a party involved in the case SOMETIMES hear cases where federal policy is in question SOMETIMES hear Diversity of State cases where two states are involved, and an amount of money over $75,000 (no plaintiff can have the same state citizenship as any defendant) T or F: in diversity cases, federal judges apply state law - Answer True State Courts: "general jurisdiction" - Answer Anything that is not exclusive to the federal courts. Pre-Trial Court Procedures - Answer (in order of process) -Complaint -Service of process -Answer (an answer has to be filed) -Discovery Trial Procedures - Answer -The jury: not always 12. Does not always require an unanimous vote for a verdict. -Jury selection and "voir dire": challenges for cause and peremptory challenges. -U.S. Supreme Court has imposed limits on preremptory challenges. Jury's Trial Procedure: - Answer -opening statements by lawyers (not evidence) -testimony: direct v. cross examination hearsay -criminal cases: instructions verdict Jury must make their decision based soley on the evidence How the trial judge "controls" the jury: - Answer -Summary judgment -Direct verdict -Judgment N.O.V. The Appeal - Answer -notice of appeal filed with the trial court -brief filed by the lawyers -oral argument -no "new" evidence is considered -action by appellate court: affirm, reverse, remand, modify Collection of Judgments - Answer -"non-exempt" assets can be seized. (furniture, jewelry, cars) -"garnishment" of wages. (taking money out of their paychecks) If a debtor can't or won't pay the judgment, can he be sent to prison? - Answer No, unless its for alimony or child support. What two reason can a lawyer NOT dismiss a juror for? - Answer Race and gender If a judge feels that a case can be resolved without a trial, the judge can... - Answer Issue a summary judgment Reasons for the popularity of Alternative Dispute Resolution (ADR) - Answer -Cost -Time -Flexibility (control) -Avoids "all or none" results Mediation - Answer -neutral third party leading to settlement -non binding -most popular. Often required by some trial judges. Arbitration - Answer -neutral third party -binding -ways it's agreed to: 1. after the dispute arises 2. in the contract Which of the following forms of ADR is often required by trial court judges before they will schedule a case for trial? - Answer Mediation Which of the following forms of ADR normally results in a ruling by a neutral third party which is binding on the parties to the dispute? - Answer Arbitration You have just won a civil lawsuit against the defendant and have been awarded a judgment in the amount of $120,000. The defendant has failed to pay the judgment. Which of the following rights do you have in this situation? - Answer -Seize and sell non exempt assets of the debtor -Garnish the wages of the debtor A trial judge has been assigned to hear a civil lawsuit. After reviewing the pleadings the judge feels that the facts are not in dispute, and that the case can be resolved without the need for a trial. In this situation the trial judge will: - Answer Issue a summary judgment When would the federal courts have jurisdiction which is concurrent with the state courts? - Answer -Diversity cases involving more than $75,000 -Case involving a federal question The U.S. Court of Appeals normally hears appeals from which of the following? - Answer U.S. District Courts Acme Company has its main office in Tulsa, Oklahoma, but also does business in Missouri. It is being sued for breach of contract by another company located in New Orleans, LA. Acme has no offices or employees in Louisiana and does no business in that state. The amount of the lawsuit is $200,000 and no federal question is presented. Acme can be sued by the Louisiana plaintiff in which of the following courts? - Answer -State court in Oklahoma -Federal court in Oklahoma -Federal court in Missouri If a trial judge applies "rule 11" to a case this means that: - Answer The defendant is entitled to damages as a result of the plaintiff filing a frivolous lawsuit What is primarily the responsibility of the jury in a civil case? - Answer Listen to the evidence presented at trial and determine what happened in the case What percentage of tort cases filed actually go to trial? - Answer 5-10% . The doctrine of "stare decisions" is most closely associated with the development of which of the following "systems" of law? - Answer Common law A federal trial court judge in Little Rock, Arkansas is considering a case which involves a mater of federal law. The U.S. Supreme Court has never decided a case involving this point of law. In this situation the federal trial court judge is obligated to follow the interpretation of law by the: - Answer U.S. Court of Appeals for the 8th Circuit . Acme Company, which sells sporting goods to retail outlets in seven southern states, has established a policy stating that all of its employees should be "team players," and that employees who criticize company policy to individuals not associated with Acme are subject to immediate dismissal. Baker, an Acme employee, violated this policy by "talking bad" about the company to his friends in church. He was immediately fired. Baker has sued Acme claiming that this policy violated his right to free speech under the first amendment. If this case were to go to court a judge would probably rule that: - Answer Acme has not violated the constitution since there is no state action One of the most famous cases in U.S. history is Marbury v. Madison (1803). The case involved a claim that a law passed by Congress was in violation of the U.S. Constitution. What best describes the final ruling by the Supreme Court - Answer It is the responsibility of the Supreme Court to determine whether or not a statute violates the constitution. A trial judge in Little Rock is considering a case which involves a point of Arkansas law that is somewhat unusual. In researching the law the judge has discovered that a number of courts have issued rulings which interpret the law in this area. Which of these rulings would constitute a precedent which is binding on the trial judge? - Answer A decision by the Arkansas Supreme Court Studying constitutional law: - Answer cannot be limited to the language of the document The constitution and "stare decisis" - Answer supreme court ruling controls but can be overturned by a later case. Supreme court decisions are: - Answer binding Federal Circuit Court of Appeal: - Answer Can disagree Federal trial judges: - Answer look to their own circuits if the supreme court is silent Comparing the regulation of commercial speech with non commercial speech, it has been held that: - Answer Commercial speech is given less protection than non commercial speech under the constitution T or F: someone burning the flag is protected under the first amendment (freedom of speech) - Answer True. Symbolic Speech is protected. The government having to avoid "excessive entanglement" with religion is called - Answer The establishment clause. (ex. praying before public school football games) The Articles: - Answer Article 1- the legislative branch Article 2- the executive branch Article 3- the judicial branch Article 4- the full faith and credit clause Article 5- amending the constitution Article 6- the supremacy clause Commercial speech is given: - Answer less protection. (ex. deceptive advertising) When the bill of rights was adopted in 1791 it was intended that they would apply only to the federal government and not to the state governments. However, over the past 75 years the Supreme Court interpretations of the constitution has resulted in most of the provisions of the constitution being applicable to the state governments as well as to the federal government. This is due mainly to the ______ clause in the 14th amendment: - Answer Due process What are three examples of unprotected speech? - Answer -"clear and present danger" concept: fighting words, threatening speeches. (ex. shouting fire in a crowded theater) -"defamation" (covered under tortes) -Obscenity Miller v. California, 413 U.S. 15 (1973). Supreme Court established three "guidelines" to be used by the trier of fact: - Answer 1. Whether the average person, applying contemporary standards, would find that the work appeals to the prurient interest. 2. Whether the work depicts sexual conduct in a patently offensive way as defined by applicable state law. 3. Whether the work lacks serious literary, artistic, political, or scientific value. Stanley v. Georgia, 394 U.S. 557 (1969): private possession of obscene material is protected by the first amendment. - Answer Obscenity and the internet Second Amendment - Answer right to bear arms Third Amendment - Answer quartering of soldiers Fourth Amendment - Answer searches and seizers Searches may be based on: - Answer 1. Consent 2. Warrant 3. Justifiable excuse (emergency, pat down pursuant to lawful stoppage) If the government seizes evidence in an illegal search, the evidence they seize is inadmissible. This is called the: - Answer Exclusionary rule Fifth Amendment - Answer protection to accused in criminal cases. (ex. double jeopardy, self incrimination, due process) Due Process - Answer basic fair treatment by the government Sixth Amendment - Answer criminal procedures in federal court (later extended to state courts) Seventh Amendment - Answer juries in civil cases (federal court) Eighth Amendment - Answer cruel and unusual punishments Ninth Amendment - Answer rights retained by people (including right to privacy) Griswold v. Conn., 381 U.S. 479 (U.S. Supreme Court, 1965) - Answer Married couple in Connecticut. Illegal in 1965 to use contraceptive, Dr. and his wife bought condoms and had to pay a fine. Trail went all the way to supreme court. Ms. Griswold ad Dr. Buxton were arrested tried, found guilty, and fined $100 each. Tenth Amendment - Answer power reserved to states Eleventh Amendment - Answer jurisdiction of federal courts Twelfth Amendment - Answer election of president Thirteenth Amendent - Answer elimination of slavery Fourteenth Amendment - Answer due process and equal protection Strict scrutiny - Answer "compelling state interest." (ex. different treatment based on race) Rational basis - Answer any conceivable rational basis for different treatment. (ex. different treatment based on age) Two cases on the equal protection clause: - Answer 1. registering for selective service 2. drinking alcohol The fourth amendment gives protection from searches and seizure by government (both federal and state). A legal search by government can be made in what circumstances? - Answer Consent by the party to be searched. Warrant obtained by the government prior to the search. In a 1964 case the Supreme Court upheld the constitutionality of the civil rights act as it related to the use of public facilities (motels). The law was upheld on the basis of: - Answer The commerce clause The federal government has exclusive authority to control airplane traffic in the U.S. with state governments having no authority in this area whatsoever. This doctrine of exclusive federal authority is known as: - Answer Preemption The requirement that states recognize and enforce the official civil court judgments of other states is known as: - Answer Full faith and credit doctrine . A little more than 50 years ago the Supreme Court applied the equal protection clause in cases involving allegations of race discrimination in such areas as public education. The court applied the strict scrutiny test in such cases. Under this standard a government would have to prove that treating members of different races differently could be justified only on the basis of: - Answer A compelling state interest (if you see strict scrutiny is usually always goes with compelling state interest) The ninth amendment helps to explain the basic nature of the rights guaranteed under the bill of rights. This amendment states that the bill of rights protects: - Answer Basic rights including those not specifically stated in the bill of rights Rule making (legislative) - Answer based on expertise and experience Adjudication (judicial) - Answer quicker and cheaper than civil courts The rulemaking authority... - Answer - Notice to public - Comment period (30 days) - Final rule issued tort - Answer injury to a person or property What is a crime? - Answer Wrong against society as proclaimed in a statute. Action is by the government: (State v. Jones or U.S. v. Jones) no statute = no crime Criminal law is mostly ________ law (federal or state) - Answer state most ______ crimes involve acts against federal officials OR acts which involve interstate commerce - Answer Federal to have _____ in a criminal case, to be able to prosecute, the crime must have occurred within the state or within the US if it's federal - Answer jurisdiction (ex. If a fight started at the TCU game, the TCU fan couldn't be charged with assault since it happened in Texas.) prosecutorial discretion - Answer Grand Jury in federal cases and some states T or F: there can be civil liability for a criminal act - Answer True Name the levels of crime in order of worst to least - Answer felonies (federal offenses/prison time), misdemeanors (maybe some jail time), petty offense (ex. parking ticket/no jail time) Name the two components of a crime - Answer -Actus reus (act) -Mens rea (intent) T or F: failure to act is not a crime - Answer true (ex. watching a friend drown and doing nothing to help) "failure to rescue" Ex. of violent crimes - Answer 1. assault (ex. attempting to harm someone causing fear) 2. battery (ex. actually hurting someone causing harm) 3. murder (ex. taking someone's life) Manslaughter - Answer when a person causes the death of another person under circumstances that would be murder except that he or she causes death under the influence of extreme emotional disturbance. Robbery - Answer face to face act "armed" with a weapon Burglary - Answer breaking and entering "aggravated" with a weapon Larceny - Answer stealing (ex. embezzlement) Insider trading - Answer occurs when an insider buys or sells securities on the basis of information not available to the public. give examples of insiders (in terms of insider trading) - Answer officers, directors, majority shareholders ect. Tippees (in terms of insider trading) - Answer people who wrongfully obtain inside information RICO: combat "racketeering" - Answer when organized groups run illegal businesses, known as "rackets," or when an organized crime ring uses legitimate organizations to embezzle funds. -criminal and civil liability (and triple damages) -requires 2 or more acts in a 5 year period. -usually applied to more "legitimate" busniesses -an organized crime -the litigation equivalent of a thermonuclear device what is a characteristic of the federal RICO law? - Answer the civil plaintiff in a RICO case may collect triple damages in federal court. Frank, a resident of Texas and a student at the University of Arkansas, is on a study abroad trip to Spain. While in Spain he is the victim of an attack committed by a resident of Spain. The person who attacked Frank was immediately arrested by Spanish officials. In this case, which entity would have the legal right to prosecute Frank's assailant? - Answer Spain, where the attack occurred. What most accurately describes a crime which involves taking something of value from another while confronting them "face to face?" - Answer Robbery Allen shot and killed his neighbor seconds after discovering that the neighbor was abusing his teenage daughter. Assuming that Allen's actions were the result of extreme emotional disturbance, this crime is best classified as: - Answer manslaughter Carter was an officer and member of the Board of Directors of a large company whose shares of stock are traded on a national exchange. Carter learned during a private board meeting that within the next three days the company was going to release a quarterly financial statement that was going to reflect that the quarterly earnings were less than half of what was expected. Based on this information Carter immediately sold 100,000 shares of company stock. When the financial statements were released a few days later the price of the stock fell $3 per share. By selling when he did, Carter saved $300,000. This action by Carter: - Answer Constitutes a violation of the federal trading law what are the two uses of force pertaining to criminal liability - Answer -deadly force (expected to result in the death or major harm of the other party) -reasonable force (any other kind of force) T or F: deadly force can be used in self defense or in some else's defense. - Answer true Necessity - Answer similar to self defense How can someone plead insanity? - Answer -the defendant must have burden of proof -the wrong doer must prove they were insane at the time of the act -exclusionary rule -in what year was this rule first pronounced by the supreme court - Answer -evidence wrongfully obtained cannot be used against the accused -1941 (federal court), 1961 (state court) Miranda v. Arizona (1966) AKA miranda rights - Answer -"you have the right to remain silent" failure to give the warning results in the statements made by the accused being excluded. -failure in being read your rights doesn't dismiss the case. You have been arrested on Dickson Street for buying illegal drugs. The person who sold you the drugs was actually an undercover officer working for the state of Arkansas, who merely offered to sell you the drugs. Which of the following defenses could be successfully used by you to avoid a conviction? 1. Failure to receive the Miranda warnings prior to making the purchase 2. Entrapment by the police 3. Not knowing that the selling of such drugs was a crime in Arkansas - Answer None of the above Case Law - Answer the law as established by the outcome of former cases. Includes law that the judges create. Includes interpetations of statutes Common Law - Answer A legal system based on custom and court rulings criminal law - Answer A law that defines crimes against the public order. Law that is design to protect society, make sure that the public is safe. Rules people must follow in order to ensure the stability of society. Violation leads to punishment. Resolves disputes between an individual and society. civil law - Answer Rules defining relationships among private citizens. Causing harm to someone as an individual. When one person causes harm to another, allowing the victim to recieve compensation. Resolves disputes between two individuals. Mosts acts that harmful are, - Answer A criminal wrong and a civil wrong. Difference between criminal and civil law - Answer The burden of proof Criminal doubt needs - Answer Need's beyond a resonable doubt. 99.9% Civil doubt need - Answer Just demonstrating that its more likely than not that the defendant did it. Most _______ cases don't end up going to trial - Answer Civil Alternitive despute resolution belongs to what type of law - Answer Civil