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