Study Guide 1 - Ch1&2.docx

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Department
Business and Management
Course
BMGT 380
Professor
Anonsteon
Semester
Fall

Description
Chapter 1 – The Nature of Law 1. Why learn law? a. A body of rules and the system in which the rules get interpreted b. Understand the constraints of law 2. Business law class goals a. Types of law that apply to business activities b. Sources of law c. Ways of evaluating law d. Role of courts and lawyer 3. Sources of law – made by federal and state a. Constitution i. Is the highest. State has it too ii. Sometimes the State’s interpret differently than federal iii. Sets up relationship between federal and state iv. Sets up rules on what to do b. Treaties i. Agreement/contract between 2 countries ii. International law, source of federal law iii. States are not allowed to make treaties c. Legislations – Federal and state general assembly i. Designed by number ii. Code – legislations grouped by code iii. Statutes – law made by congress iv. State legislatures make statues and they are called general assembly v. Ordinates – made below state 1. County – code [ORD] d. Common law – most laws we discuss i. Judge or court made law ii. Precedent – Rule from a case becomes binding for the future iii. “Stare decisis – stand by the decision iv. Judges usually stay consistent with precedent ruling v. “Distinguish a case” – not over rule the precedent but say it doesn’t apply to ‘this case’ e. Executive orders i. President at federal level and governors at state level make it f. Regulations and decisions – administrative agency i. Get authority from congress or executive to make rules ii. Federal – SEC, Department of labor iii. State – administrative law court 4. Priority rules a. Courts make rule of law and interpret any other sources of law b. Any 2 sources of law may be conflicting c. Primary rule – federal always defeats state law d. Constitutions defeat all other laws within their domain (state or federal) i. Federal constitution > federal statute ii. State constitution > state statute e. Treaties vs. federal statutes (on domestic matters) = later in time prevails i. Whichever is the last law made rules f. Statutes defeat other laws depend on a legislative delegation i. Statutes > administrative agency g. Statutes (and the laws derived from statutes by delegation) defeat common law rules i. Common law is the lowest 5. Classifications of law a. Law and equity i. Law – court of common law ii. Most law and equity courts have merged into one court iii. Equity – law out of a different court 1. Court of chancery (5 states have it) 2. Delaware is where corporate litigations occur a. Most corporates are incorporated in Delaware because of this 3. Contract defenses 4. Based on fairness and justice 5. Judge were bishop and knew the cannon law 6. Fraud came from equity b. Criminal and Civil Law i. Civil 1. Individuals resulting their disputes or court ordered 2. Damages – money being given ii. Criminal 1. Government suing by prosecutor by the criminal code (law) 2. If you lose – go to jail, prison or pay money to government (fine) c. Substantive and procedural law i. Process of obtaining rights ii. Substantive – sets the rights and duties of people as they act in society iii. Procedural – controls the behavior of government bodies, mainly courts as they establish and enforce rules of substantive law iv. Battery – when someone hits you v. “Tort” – what you use to set the money amount d. Public vs. Private i. Public – constitution: crime against the government ii. Private – Contract law, Tort law: crime against another party 6. Functions of Law a. Peacekeeping b. Checking government power and promoting personal freedom c. Facilitating planning and realization of reasonable expectations d. Promote economic growth through free competition e. Promoting social justice f. Protecting the environment Legal Reasoning – What types of arguments are used to determine what the law means? 1. General notes a. Ways to understand the law b. Understanding the model of the law c. The rules judges use to make the rules/law 2. Pluralistic model of law – many different models a. Policy, tradition, precedent, intent and text b. The more models you use the better for your argument 3. Types of legal arguments: characteristics a. Different foundations b. Different evidence to discern meaning i. To determine what they are c. Different values 4. Pluralistic Model of Law a. Text – actual words themselves i. Make a decision based on legal text ii. Only the text 1. Go to the dictionary for definition 2. Usually doesn’t answer the question iii. Promotes – objectivity b. Intent – intent of the people who made the law i. Based on what the text meant to those who enacted it ii. Go to the history of law, start at bill, look at committee summary iii. References about intent of those who created the text iv. Promotes – popular will c. Precedent – case ruling i. Based on judicial opinions ii. Cases iii. Promotes – stability d. Tradition – custom of people, what people are doing i. Based on community customs ii. Historical beliefs and behavior iii. Promotes – Social cohesion 1. This was what was going on when they made the law e. Policy – cause vs. benefit analysis i. Based on the purposes of the law 1. Usually more than one purpose in the law therefore further one purpose at the expense of another ii. Any fact worthy of judicial notice iii. Promotes – flexibility f. Example – contract made by judge promote certainty and fairness 5. Legal interpretation a. There is no hierarchy in the five reasoning b. No rule that says one reasoning rules over the other c. If 2 conflict, judges use judgment to pick one d. Law is indeterminate and need a judgment call for final decision e. Patent law – get it from office, providing all information f. Some judges have preferences to which is good reasoning therefore it is important to cater your case to the judge to make it more persuasive g. Policy and precedent are most used in our cases h. Goal is to use as many legal reasoning as possible 6. Briefing a case a. Facts b. Procedural history i. Who started the case at what trial level, who won, now what> c. Issues – frame as a question i. Narrow vs. broad d. Holding – ruling, precedent i. Answers to the issues e. Reasons i. The 5 legal reasoning f. Result i. Affirm/reverse the lower level court decision ii. (affirm is agree, reverse is disagree, reverse & amend – if it is totally different) Comparative Law – Legal systems of the world 1. Legal geography of the world a. Romano-Germanic Civil Law – most countries b. Anglo-American Common Law – USA c. Islamic Law (“Shari’a”) d. Socialist Law e. Local Law f. Mixed/hybrid systems** - a little bit of multiple systems 2. Civil Law a. Europe civil law – don’t have common law or no precedent b. Oldest – began in 534 AD, most popular c. Two periods: i. Roman – where it originated 1. Emperor Jostenian – complied all the laws of Rome for the first time, statutory law to enforce. 2. Called “Corpus Juris Civilis” 3. Before the law was enforced, the Roman Empire fell. First law school recovered it and studied it and brought it to their place. ii. Codes – when it became enforced 1. France (1804) – Code Napoleon a. Put it in French, judge prove the code. 2. Germany (1896) – put it in German d. Countries started forming and they started using the codes to unify the country i. Thereafter – Adopted either France or German code and put it in their language e. Louisiana did not adapt the common law – they use French’s civil law f. Tibet civil law 3. Common Law a. Precedent – must read it and follow it b. Least distributed c. Recognized and respected d. Two distinguishing characteristics i. Judge-made law ii. Jury 4. Islamic Law (Shari’ah) a. Based on religion – “legal faith” b. Shari-ah” – “the way” “the path to water” c. Sources of law includes the Qur’an d. Judges have to use tradition and text to make the law e. More stable 5. Socialist Law a. 1917 Bolshevik Revolution in Russia b. Party-dominated ideology c. Most changing to civil law d. North Korea and Cuba Chapter 2 – Court Systems – Jurisdiction 1. Court process – important but long and costly 2. 2 Kinds of Jurisdiction AKA “Court Power” a. Personal Jurisdiction and subject matter jurisdiction i. Both has to be met, if one is missing then judgment doesn’t stand 3. Personal Jurisdiction – Over the party a. “Actor Forum Rei Sequitur” i. General Rule – Find where they live and sue them there ii. Only a problem if non-resident defendant b. Balancing test - “minimum contracts” test with the state being sued in such that maintaining an action there comports with “traditional notions of fair play and substantial justice”  Policy analysis! i. Case made rule – due to process clause of the constitution – entitled to due process of law supreme court interpreted means a defendant should be sued in another state if there is minimum contacts then it is fair 4. Subject matter jurisdiction – type of case a. Focuses on the kind of case i. Exclusive federal jurisdiction 1. Federal crimes, bankruptcy, patents, copyright and trademarks, admiralty, antitrust, suits against the U.S., specified federal statutes ii. Exclusive state jurisdiction 1. All other matters iii. Concurrent (shared) jurisdiction 1. Federal questions and diversity of citizenship  have to know these! 2. Burger King case example 3. With federal law case – can go to federal or state 4. Only state must meet both test to go to federal b. 2 WAYS to get subject matter jurisdiction in federal court i. Federal law OR ii. State law issue – must meet 2 part test: 1. Diversity of citizenship: reside in 2 different states a. Citizen where you incorporate/where your principle place of business b. Individual by resident state 2. Amount in controversy more than $75,000 a. Stated in your complaint 5. More details: To get into federal court a. An issue of federal law b. Only state law issues to be resolved c. Worried about bias of state judges because they may show favoritism towards in- state parties d. Federal judge appointed for life so you don’t have to worry about that. e. State judges elected, have to campaign f. State judges appointed by the government by a committee g. Hybrid system appointed by the governor then about 6 years later, citizens vote 6. What circuit applet you go to depends on where you live 7. General Structure – 3 tiers – hear have the right to be heard in intermediate courts, not in the high courts. 8. Can you consent to jurisdiction? a. Personal jurisdiction = Yes, consent! i. Forum selection clause in a contract – pre-agree 1. Don’t have to worry about personal jurisdiction if you input it in the contract beforehand ii. Agree after the lawsuit 1. You are allow
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