Article & Jurisdiction Court Law – Business & Management

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Article & Jurisdiction Court Law – Business & Management

This chapter is about article and jurisdiction court law of business and management.


article 1

legislative branch (congress – house and senate)


article 2

executive branch/president- execute legislation, command armed forces and make treaties


article 3

judicial branch- supreme court and subsidiary courts power


marbury v madison

This case establishes the Supreme Court’s power of Judicial Review- power to declare statute or governmental action unconstitutional and void


powers shared w the states

power to tax, spend


article VI (6)

federal supremacy is on this article


article 1, section 8

lists issues on which congress may pass statutes


rational basis test (minimal scrutiny)

if law has rational basis, it will stand


intermediate scrutiny

Law must substantially relate to important governmental objectives to stand


strict scrutiny

law presumed invalid if, on its face, it is based on race, ethnicity and religion


commerce clause

in article 1, section 8- INTER state commerce but intra when it affects inter


first amendment

Guarantees freedom of religion, speech, press, assembly, and petition to individuals and corporations– protection has never been afforded to certain classes of speech like false, lewd, profane, etc


commercial speech

speech proposing a commercial transaction. 1st amend protects if it seeks to implement a substantial govt interest and directly advances the interest and is the least restrictive method of achieving the interest


5th amendment

prohibits federal govt from depriving any person of life liberty or property without due process of law– due process clause. applied to states through 14th amend by process of incorporation


due process clause

interpreted liberally to be a guarantee of protection from unreasonable procedures/laws and government action


takings clause

depriving a person of property- govt must pay property owner just compensation in exchange for taking property by eminent domain– public use purpose is required


the constitution establishes a tripartite govt

true


the fed govt has exclusive power over matters of war and taxation

false- both fed and state govt can tax


States possess exclusive power to enact laws to protect welfare, health, and safety.

true


court

established by a government to hear and decide matters before it and redress
past or prevent future wrongs


jurisdiction

the power to hear and speak– may be original or appellate


general jurisdiction courts

hear most types of cases- levels generally classified according to $ amts of
damages or location ex: trial courts, county or district courts


limited jurisdiction courts

hear specialized types of cases; appeals from decisions often require new
trial in general jurisdiction court ex: traffic, tax or family court


subject matter jurisdiction

refers to a court’s authority to hear a particular type of dispute


courts of criminal jurisdiction

Hear trials of crimes and misdemeanors
Offenses against the public at large


Courts of Civil Jurisdiction

hear and decide issues concerning private rights and duties (e.g.,
contracts, torts), and non-criminal public matters (e.g., zoning, probate)


in personam jurisdiction

requires that the defendant be a resident of, located within, or have
committed acts within the physical boundaries of the court’s authority


in rem jurisdiction

applies when property that is the subject of a dispute is located within the
physical boundaries of a court’s authority ex: a dispute over a sale


diversity jurisdiction

exists when the dispute is between citizens of different states and amount
exceeds $75,000


Federal Question Jurisdiction

exists when the case arises under the constitution, laws, or treaties of the
US


federal court hierarchy

top to bottom– US supreme court (appellate jurisdiction, final
review/decision—-court of appeals (appellate jurisdiction)— district courts
(trial, original juris) or statuatory courts (original limited juris)


State Court Hierarchy

-State Supreme Court (Final appellate)
-Civil State/criminal Court of Appeal
-District courts (trial courts for civil matter under certain $$) and criminal
courts
-County courts (civil for under $$)
-Justice of the peace courts (small claims and misdemeaner courts)
-Limited jurisdiction courts (family, traffic)


civil procedure

set of legal rules establishing how a civil lawsuit proceeds from beginning
to end


adversarial system

trial procedures designed to resolve conflict through the clash of opposing
sides, moderated by a neutral, passive judge who applies the law– plaintiff
bears the burden of proof to prove their case by a preponderance of the
evidence,


Civil pre-trial procedures

1) action or event occurs that allegedly causes harm
2) injured party (plaintiff) files petition or complaint
3) sheriff serves process (writ, notice, summons) on defendant
4) defendant answers complaint
5) case proceeds to trial or settlement


pleadings

plaintiff’s complaint or petition plus the defendants answer/response
–Defendant may enter a counterclain or a cross complaint against a 3rd party
– other parties may enter the case


motion practice

some motions ask the judge to decide the result before trial


motion to dismiss (demurrer)

a request by the defendant that asks a judge or a court in a civil case to
dismiss the case because even if all the allegations are true, the plaintiff is
not entitled to any legal relief


motion for judgment on the pleadings

A motion by either party to a lawsuit at the close of the pleadings
requesting the court to decide the issue solely on the pleadings without
proceeding to trial. The motion will be granted only if no facts are in
dispute.


motion for summary judgment

A motion requesting the court to enter a judgment without proceeding to
trial. The motion can be based on evidence outside the pleadings and will be
granted only if no facts are in dispute.


motions

should not be taken lightly!!


discovery

obtaining evidence from the other party through interoggatories, requests
for admissions, request for docs, and depositions — can be a battleground


pretrial conference

Where judge will hear and rule on many evidentiary issues, discovery
disputes, and other concerns


Interoggatories

a written question which is formally put to one party in a case by another
party and which must be answered


request for admissions

During the pre-trial discovery phase of a civil lawsuit, the parties may ask
the other side to admit to certain facts in the case through the use of a
written request for admissions, which are answered by the party under oath.


depositions

Oral questions asked of parties and witnesses under oath.


arbitration

dispute settled by one or more arbitrators selected by the parties to a
dispute; relatively formal; Uniform or Federal Arbitration acts typically used


mediation

parties choose neutral party to aid resolution of dispute


reference to third party

dispute resolution by rent-a-judge, minitrial, summary jury trial, or
association tribunal


why choose ADR?

Less costly, in general
May be more appropriate method of resolution for certain types of cases
Example: family law disputes, real estate disputes between neighbors, high-tech
or trade-secret disputes
May be required by clause in contract


A trial court has original jurisdiction and an appellate court has appellate
jurisdiction

true


Statutes

written laws enacted by legislatures


Common/case law

made and applied by judges at the state level as judges decide cases
according to the doctrine of precedent or stare decisis


Stare decisis

Let the decision stand; decisions are based on precedents from previous
cases


equity

is applied by state level judiciary to achieve justice when common law rules
would produce unfair results


injunction

court forbids a party to do some act or orders a party to perform an act


specific performance

a party is ordered to perform according to the terms of her contract


reformation

the court rewrites the contract’s terms to reflect the parties’ real
intentions


recission

the cancellation of a contract; goes back to policy inception with all
premiums paid minus and payments; usually do to fraud, concealment or material
misrepresentation


administrative regulations and
decisions

made by state and federal agencies that were created by statute and hold
delegated (granted) power


treaty

made by other nations, by the US pres on behalf of the US, approved by the
senate


ordinance

made by subunits of state governments (e.g., counties, cities) for local
issues, such as zoning


Subject-matter jurisdiction refers to a court’s authority to hear a particular type of dispute

true


In personam jurisdiction refers to the court’s jurisdiction over the defendant, but in rem jurisdiction refers to the court’s jurisdiction over the property in dispute

true


The burden of proof solely rests on the plaintiff

false- The burden of proof begins with the plaintiff. Once the plaintiff can prove a prima facie case with clear and convincing evidence, the burden can be shifted to the defendant.


Matters of law are determined by either the jury or the judge.

false- Only a judge may determine a matter of law. A judge or a jury may act as the trier of fact.


Diversity jurisdiction refers to:
a. a jury pool that reflects the ethnic makeup of the city
b. a citizen’s lawsuit against the government
c. a lawsuit by a citizen of one state against a citizen of a different state -correct


Methods of alternative dispute resolution

mediation, arbitration and summary jury trial


Discovery refers to:
a. the discovery that a dispute exists
b. the pre-trial process involving interrogatories, requests for admissions, and requests for documents -correct
c. the analysis of fault in a dispute


After the verdict:
a. Either party may make post-verdict motions -correct
b. The trial must end
c. The trial begins


jury selection

The process whereby, according to law and precedent, members of a trial jury are chosen.


voir dire or jury questioning

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.


Civil Trial Procedure

1) jury selection, opening statement from each party
2) -plaintiff’s case thru direct exam of witnesses (defendant cross examines)
-defendant’s case thru direct exam (plaintiff cross examines)
3) closing argument or summation from each party
4) jury verdict
5) possible trial motions


motions in limine

motion to suppress certain information from the jury


voluntary non-suit or dismissal

drop the case


Motion for Compulsory Non-Suit

decision made by the court that a case cannot proceed to trial


mistrial

A trial declared invalid because of some error in the proceedings- injustice or overwhelming prejudice


directed verdict

weight of evidence leads to only one conclusion


trier of fact

the jury in a jury trial; the judge when there is not a jury trial– sees material evidence, hears testimony of witnesses and decides outcome based on facts


matters of law

issues not of fact, but of law. Decided by a judge


Judgement non obstante veredicto

A judgement notwithstanding the jury’s verdict. Asking the court to disregard the jury’s verdict.


remittitur

The reduction by a judge of the damages awarded by a jury. very common


The difference between general jurisdiction and limited jurisdiction is based on the amount in controversy (the damages amount)

false- General jurisdiction refers to a court that may hear a wide variety of cases, but limited jurisdiction refers to a court that may only hear specific types of cases, such as traffic, probate, or family disputes.


the 5th amendment prohibits depriving any person of life liberty or happiness

false- not happiness, due process


federal supremacy means that the us constitution is the supreme law of the land

true


the fed govt may not interfere with interstate commerce

false

the fed govt may not restrict individual or commercial speech

false


constitutional limitations on governmental power includes the 5th amendment

true

the takings clause means that the fed govt cannot take away on individuals freedom

false- cant take property without compensation


Courts apply a means-ends test to review an allegedly unconstitutional statute. Which level of scrutiny applies to a statute that gives benefits to people based on their religion?
a. Minimal scrutiny
b. Intermediate scrutiny
c. Strict scrutiny -correct


Substantive due process refers to a prohibition against:
a. Unreasonable procedures
b. Unreasonable laws -correct
c. Unreasonable (unfair) results


uniform codes

when traveling, you dont have to worry about what is and isnt legal across state borders– commercial code agrees to make business easier (49/50 states)


evidentiary questions

questions that depend on the evidence you can prove (batson case)


public policy

protects from something that will break families or hurt people


maxims

prinicple of low universally admitted as being just with reason


emolument clause

restricts members of the government from receiving gifts, emoluments, offices or titles from foreign states- cant receive if in office


obligation to prove

person committed of a crime doesnt have to speak– prosecutor has obligation to prove in criminal cases and plaintiff has obligation in civil cases


federal preemption

article 1, section 8–right of federal government to regulate matters within its power to the exclusion of regulation by the states


14th amendment

in place after the civil war– equal protection clause


2nd amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


Courts are:
a. Limited to hearing existing cases or controversies -correct
b. Limited to hearing cases in which plaintiff has standing (a direct interest in the outcome)
c. Unlimited in types of cases they may hear
d. All of the above
e. Both A & B


The plain meaning rule means that the court applies a statute
a. according to the unique or special meaning of words
b. according to usual meaning of the words -correct
c. according to public policy and legislative purpose


civil law establishes the duties an individual has to keeping a civil society

false


substantive law establishes how to enforce the rights and duties of people in society

false


jurisprudence refers the philosophy of law as well as the collection of laws

true


legal reasoning is basicially inductive

false- it is inductive


the constitution, statutues, and case law are sources of law in the US

true


agency regulations, presidential orders, and treaties are sources of law inthe US

true


stare decisis refers to the doctrine of equity

false- refers to the doctrine of the precedent. The doctrine of equity is applied by judges to achieve justice when legal rules would produce unfair results.


the supremecy clause states that the US constitution is the supreme law of the land

True


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