Unit 1 Study Guide For Business Law Chapter 1 1. The Natural Law School of jurisprudence postulates that the law is based on what is “correct. ” 2. The Historical School of jurisprudence believes that the law is an aggregate of social traditions and customs that have developed over the centuries. 3. The Analytical School of jurisprudence maintains that the law is shaped by logic. 4. The Sociological School of jurisprudence asserts that the law is a means of achieving and advancing certain sociological goals. 5.
The Critical Legal Studies School proposes that legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo. 6. The Law and Economics School believes that promoting market efficiency should be the central goal of legal decision-making. 7. English common law can be divided into cases decided by law courts, equity courts, and merchant courts. 8. Although administrative agencies are often informally referred to as the “fourth branch of government,” the legislative branch of government has the power to make (enact) the law. . Statutes are written laws that establish certain courses of conduct that must be adhered to by covered parties. 10. The doctrine of stare decisis dictates adherence to judicial precedent. 11. Executive orders are issued by the executive branch of government, which includes the president of the United States and state governors. 12. American law is based primarily on English common law, but other legal systems, such as Spanish and French civil law, also influenced it. 13. The Natural Law School of jurisprudence is based on morality and ethics. 14.
The Command School of jurisprudence proposes that the law should be a set of rules developed, communicated, and enforced by the ruling party, rather than a reflection of society’s morality, history, logic, or sociology. 15. The doctrine of stare decisis promotes uniformity of law within a jurisdiction. 16. The United States Congress is empowered by the United States Constitution to enact federal statutes regulating foreign and interstate commerce. 17. The United States Constitution provides that the president, with the advice and consent of two-thirds of the Senate, may enter into treaties with foreign governments. 8. The executive branch of government is empowered to issue executive orders. 19. The legislative and executive branches of federal and state governments are empowered to establish administrative agencies to enforce and interpret statutes enacted by Congress and state legislatures. 20. Administrative agencies are often referred to as the “fourth branch of government. ” 21. The courts of one jurisdiction are not bound by the precedent established by the courts of another jurisdiction. 22. Valid federal law takes precedence over any conflicting state or local law. 3. In Brown v. Board of Education, the United States Supreme Court held that the “separate but equal” doctrine violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Chapter 2 1. Juvenile courts are examples of limited-jurisdiction trial courts. 2. The highest court in a state court system is typically referred to as the state supreme court. 3. If all of the United States Supreme Court justices voting agree as to the outcome and reasoning used to decide a case, the decision is referred to as a unanimous decision. 4.
If a majority of the United States Supreme Court justices agree as to the outcome of a case but not as to the reasoning for reaching the outcome, the decision is referred to as a plurality decision. 5. Jurisdiction over the property of the lawsuit is called in rem jurisdiction. 6. Venue requires lawsuits to be heard by the court with jurisdiction nearest the location in which the incident occurred or where the parties reside. 7. A justice who agrees with the outcome of a case but not the reason proffered by the other justices can issue a concurring opinion. 8.
Federal courts have exclusive jurisdiction to hear cases involving federal crimes. 9. To bring a lawsuit, a plaintiff must have standing to sue. 10. Quasi in rem jurisdiction is also referred to as “attachment” jurisdiction. 11. “In rem” jurisdiction represents a court’s power to hear and decide a case because it has jurisdiction over the property of the lawsuit. 12. In order for a state’s “long-arm” statute to extend a state’s jurisdiction to nonresidents who were not served a summons within the state, the nonresident must have had minimum contact with the state. 3. The exercise of long-arm jurisdiction is generally permitted over nonresidents whom have (1) committed torts within the state, (2) entered into a contract either in the state or that affects the state, or (3) transacted other business in the state that allegedly caused injury to another person. 14. State limited-jurisdiction trial courts are sometimes referred to as “inferior” trial courts. 15. The decisions of small claims courts are often appealable to general-jurisdiction trial courts or appellate courts. 16.
General-jurisdiction trial courts are often referred to as courts of record. 17. Intermediate appellate courts hear appeals from trial courts. 18. No new evidence or testimony is permitted at the appellate court level. 19. If the United States Supreme Court decides to review a case, it issues a writ of certiorari. 20. If a majority of the United States Supreme Court agrees as to the outcome of a case but not as to the reasoning for reaching the outcome, it is a plurality opinion. 21. A United States Supreme Court justice who does not agree with a decision can file a dissenting opinion. 2. A justice who agrees with the outcome of a case but not the reason proffered by other justices can issue a concurring opinion. 23. To bring a lawsuit, a plaintiff must have standing to sue. 24. Jurisdiction over a person is called in personam jurisdiction. 25. Jurisdiction over the property of a lawsuit is called “in rem” jurisdiction. 26. Venue requires lawsuits to be heard by the court with jurisdiction nearest the location in which the incident occurred or where the parties reside. 27. Courts generally frown upon “forum shopping. 28. A contractual clause specifying which state’s law or country’s law will apply in resolving a dispute is called a “choice-of-law” clause. Chapter 3 1. The pretrial litigation process can be divided into the following major phases: (1) pleadings; (2) discovery; (3) dismissals and pre-trial judgments; and (4) the settlement conference. 2. A summons is a court order directing the defendant to appear in court and answer the complaint. 3. If the defendant does not answer the complaint, a default judgment is entered against him or her. 4.
The major forms of discovery include depositions, interrogatories, production of documents, and physical and mental examinations. 5. A motion for summary judgment asserts that there are no factual disputes to be decided by the jury, and that the judge should apply the relevant law to the undisputed facts and decide the case; this motion can be made by either party, and is supported by evidence outside of the pleadings, including affidavits from the parties and witnesses, documents related to the litigation, and depositions. 6. The settlement conference is also referred to as the pre-trial hearing. . Pursuant to the Seventh Amendment to the United States Constitution, a party to an action at law is guaranteed the right to a jury trial in a case in federal court. 8. The simplest form of alternative dispute resolution is engaging in negotiations between the parties to settle a dispute. 9. In arbitration, the parties choose an impartial third party to hear and decide the dispute. 10. Mediation is a form of alternative dispute resolution in which a neutral third party assists the disputing parties in reaching a settlement of their dispute (without deciding the dispute. 11. The pre-trial litigation process involves the discovery phase. 12. To initiate a lawsuit, the plaintiff must file a complaint in the proper court. 13. If the defendant does not answer the complaint, a default judgment is entered against him or her. 14. In the cross-complaint, the defendant (the cross-complainant) sues the plaintiff (the cross-defendant) for damages or some other remedy. 15. A statute of limitations establishes the period during which a plaintiff must bring a lawsuit against a defendant. 6. Interrogatories are written questions submitted by one party to a lawsuit to another party. 17. A deposition is the oral testimony given by a party or witness before trial. 18. A motion for judgment on the pleadings can be made by either party once the pleadings are complete. 19. A motion for summary judgment asserts that there are no factual disputes to be decided by the jury, and that the judge should apply the relevant law to the undisputed facts and decide the case. 20.
More than 95% of all cases are settled before they go to trial. 21. Pursuant to the Seventh Amendment to the United States Constitution, a party to an action at law is guaranteed the right to a jury trial in a case in federal court. 22. “Voir dire” means “to speak the truth. ” 23. The appealing party is called the appellant, or the petitioner. Chapter 4 1. The Supremacy Clause of the United States Constitution establishes that the federal Constitution, treaties, federal laws, and federal regulations are the supreme law of the land. . The Commerce Clause of the United States Constitution grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes. ” 3. The authority of states to regulate intrastate and much interstate business activity that occurs within their borders is commonly referred to as states’ police power. 4. In 1791, the ten amendments that are commonly referred to as the Bill of Rights were approved by the states and became part of the United States Constitution. 5.
The United States Supreme Court has held that the content of offensive speech may not be forbidden, but that it be restricted by the government under time, place, and manner restrictions. 6. Unprotected speech is not protected by the First Amendment to the United States Constitution, and may be totally forbidden by the government. Types of unprotected speech include dangerous speech, fighting words, speech that incites the violent or revolutionary overthrow of the government, defamatory language, and child pornography. . In Miller v. California, the United States Supreme Court determined that speech is obscene when: (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . The Establishment Clause of the First Amendment to the United States Constitution prohibits the government from either establishing a state religion or promoting one religion over another. 9. The Fourteenth Amendment to the United States Constitution includes the Equal Protection Clause, the Due Process Clause, and the Privileges and Immunities Clause. 10. Any government activity or regulation that classifies persons based on a suspect class (i. e. race) is reviewed for lawfulness using a strict scrutiny test. 11. The lawfulness of government classifications based on protected classes other than race (such as sex or age) is examined using an intermediate scrutiny test. 12. The lawfulness of all government classifications that do not involve suspect or protected classes is examined using a rational basis test. 13. The Fifth and Fourteenth Amendments to the United States Constitution both contain Due Process Clauses. 14.
The legislative branch of the United States government is bicameral; in other words, it consists of the Senate and the House of Representatives. 15. The United States president is not elected by popular vote, but is instead selected by the electoral college. 16. The concept of federal law taking precedence over state or local law is commonly called the preemption doctrine. 17. The Commerce Clause of the United States Constitution grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes. 18. In 1791, the ten constitutional amendments that are commonly referred to as the Bill of Rights were approved by the states and became part of the United States Constitution. 19. The United States Supreme Court places speech into three categories: (1) fully protected; (2) limited protected; and (3) unprotected speech. 20. The United States Supreme Court has held that the content of offensive speech may not be forbidden, but that it may be restricted by the government through time, place, and manner restrictions. 1. Today, because of United States Supreme Court decisions, the content of commercial speech is protected, but it is subject to time, place, and manner restrictions. 22. A city can prohibit billboards along its highways for safety and aesthetic reasons if other forms of advertising (e. g. , print media) are available. 23. The United States Supreme Court has held that the Internet must be given the highest possible level of First Amendment free speech protection. 24.
Examples of unprotected speech include dangerous speech, fighting words, speech that incites the violent or revolutionary overthrow of the government, defamatory language, and child pornography. 25. The First Amendment to the United States Constitution contains two separate religion clauses, the Establishment Clause and the Free Exercise Clause. 26. Provisions of the Fourteenth Amendment to the United States Constitution include the Equal Protection Clause, the Due Process Clause, and the Privileges and Immunities Clause.