Rule of conduct, chosen to be enforced by society (i.e. must be obeyed by citizens subject to sanctions or penalties)
What is Common Law?
Judicial decisions based on historical body of case law
What is Precedent?
Historical case law that binds a court (in the
same jurisdiction) to make the same ruling / decision on the current case (assuming the same facts)
What is Stare decisis?
Let the decision stand. (Based on Precendent)
What are two reasons we use Common Law and Stare Decisis?
1. Predictability
2. Reliability
What are the Six sources of Law?
1. US. Constitution
2. State Constitution
3. Treaties
4. Equity
5. Statutes
6. Administrative Law
___________is the entire set rules that create, interpret, and enforce our nation’s laws.
D. Legal System
Who is the prosecuter in Criminal Law?
The prosecuter is the government against an individual.
Describe criminal law.
-Concerns behaviors society has outlawed due to its threatening nature.
-Guilt is determined
-Punishments include fines or imprisonment
Describe Civil law.
Guilt is not determined.
This is between two individuals about making wrongs right.
What is Substantive Law?
Defines the rights of people (landlord-leasee) which restricts conduct (you should not murder).
What is Procedural Law?
Establishes the process of settling disputes (civil or criminal? Jury or no jury?)
What is Public Law?
Rights and obligations of governments as they deal with the nation's citizens. (between you and the government)
What is Private law?
Regulates duties between individuals, private sector (landlord-tenant laws)
What are the five components of a “judicial decision” (i.e. case)
1. Title and legal citation
2. Facts
3. Issue
4. Holding
5. Reasoning/Rational
T/F The Constitution is the supreme law of the land
T
T/F The Constitution establishes government and provides the framework therefore
T
What are the three main compromises in the constitution?
1. Separation of Power (Checks and Balances)
2. Federalism
3. Individual Rights
What is Federalism?
-ALL powers not specifically enumerated to the
federal government are the province of the states.
-sovereignty is constitutionally divided among the federal government and the individual states.
What is the first Amendment?
Freedom of Speech, Press, Assembly, Religion
Which of the following are unprotected Speech?
E. All of the Above
T/F If the government makes a time/place/manner
restriction, the restriction MUST meet all of the following criteria:
-Be content neutral
-Be narrowly tailored...
-...to serve a significant governmental interest
-Leave open ample alternative channels for
communication
T
What are the restrictions on speech?
Time/Place/Manner
What is the fourth Amendment?
Right to privacy and unreasonable search and seizure.
Define Probable Cause
That which is based on factual evidence and not reasonable suspicion.
T/F The following are examples of reasonable searches and seizures:
-Terry stop / frisk / pat down
-“where are you kids going?”
-Reasonable Suspicion vs Probable Cause
T
How does one obtain a search warrent?
To obtain a search warrant, an officer must first prove that probable cause exists before a judge, based upon direct information or hearsay information.
T/F The contents of a warrant are as follows:
-specify the date and time of issuance
-identify specifically the property to be seized
-name or describe the person or place to be searched
direct that the search be executed either within a specific period of time or for a certain event.
-direct that the warrant be served in the daytime unless otherwise authorized on the warrant
-designate by title the judicial officer to whom the warrant shall be returned
-certify that the issuing authority has found probable cause based upon the facts sworn to or affirmed before the issuing authority
-when applicable, certify on the face of the warrant that for good cause shown the affidavit(s) is sealed
T
What level of constitutional protection is needed for Entering Someone's Home?
Search Warrent
What level of constitutional protection is needed for Arrests?
Probable Cause
What level of constitutional protection is needed for pat downs?
Reasonable Suspicion
T/F The Fifth Amendment applies when
the government takes your life, liberty or property.
it includes
-Substantive Due Process
-Procedural Due Process
and
-Takings Clause
T
What is Substantive Due Process?
Government cannot make laws that infringe upon your fundamental rights.
What is Procedural Due Process?
-If the government is going to take from you –
you must be given a fair chance to oppose the action and the government must
treat everyone fairly throughout the procedural process.
-The amount of process due has a POSITIVE
relationship with the liberty or property interest involved.
What is the Takings Clause?
-If the government takes your property (and
remember “taking” doesn’t just mean swiping it from you) it must be for PUBLIC USE (benefit the public or general welfare) and you must be JUSTLY COMPENSATED
What is the Fourteenth Amendment (Equal Protection)?
Government must treat everyone equally unless the government action passes certain tests:
-Minimal / rational scrutiny
-Intermediate scrutiny
-Strict scrutiny
T/F Minimal/Rational Scrutiny includes Gender
F
T/F Intermediate Scrutiny includes Social and Economic regulations
F
T/F Strict Scrutiny includes race and fundamental rights.
T
How is a law made?
State/local bill is sent to Congress (HoR and Senate) then to the President where it is vetoed or passed as a law.
What is the 3 step process to interpret the law?
1. Plain Meaning
2. Legislative Intent (What the court believes the legislature indends)
3. Public Policy
What are the requirements to get into Federal Court?
1. Federal Criminal- Violation of federal law
2. Federal Civil/Jurisdiction (federal court has the ability to hear a case and make a ruling)/Federal Question
Tax court, military court, probate court, and juvenile court are all examples of _________ jurisdiction.
B. Limited- it can ONLY hear the type of case that is legally permissible
Trial Court is described as....
1. All courts start here
2. Fact find
3. Judge, usually a jury – decision is
rendered based on PRECEDENT AND STARE DECISIS
Appellate Courts are defined as...
T/F Includes Fact Finding
T/F Includes 3+ judges, no Jury
T/F If error in law is found the decision is reversed
T/F If no error law found, then the decision is
AFFIRMED and the trial court’s ruling is upheld.
F
T
T
T
_________ is the process of resolving a dispute in court.
Litigation
What is the 3-step process to Civil Litigation?
1. Pre-trial. Pleadings
2. Discovery (fact find)
3. Trial
What is Pre Trial in the Civil Litigation Process?
-Try to settle / negotiate settlement
-Compliant – Plaintiff describes facts and legal
claims, files with the court to start lawsuit
-SERVED – Plaintiff serves Defendant with Summons and copy of Complaint
-Answer – Defendant’s reply to the Complaint.
What happens when a case goes to trial?
Adversarial process
Exposes Burden of Proof
Voir Dire
Process
What is included in the process part of when a case goes to trial?
1. Plaintiff presents case first. Defendant goes second.
2. Opening Statement
3. Presentation of evidence and witnesses
4. Closing Statement
5. Jury Instructions
6. Verdict
What are the different Business Entities?
1. Sole Proprietorship
2. General/Limited Partnership/LLP
3. LLC
4. S-Corp
5. C-Corp
Describe a Sole Proprietorship pertaining to: Liability, Raising Capital, Management, Taxes and Formation/Operating Regulations.
1. Liability: Unlimited Personal
2. RC: Limited what can be obtained
3. Mgt: 100% management
4. Tax: Taxed as an individual
5. Formation/Operating Regulations: N/A
Describe a General Partnership pertaining to: Liability, Raising Capital, Management, Taxes and Formation/Operating Regulations.
1. Liability: Unlimited liability for both partners
2. RC: Limited to Partner Resources
3. MGT: 50-50
4. Taxes: Individual
5. F/OR: N/A
Describe a LLC pertaining to: Liability, Management Taxes, Raising Capital and Formation/Operating Regulations.
Liability: Limited
Taxes: no double taxation
F/O REG: Operating Agreement, Articles of Organization
Management:
RC:
Describe a Corporation pertaining to: Liability, Management Taxes, Raising Capital and Formation/Operating Regulations.
Liability: Limited Shareholder Liability
Management: Structure is set
Taxes: Double Taxed
RC: Easy to raise capital
F/O Reg: Heavily Regulated
Explain how a Corporation is "separate but distinct from owners".
Owner's assets are protect from the company if it is being sued and/or incurrs debt because the corporation is considered a "corporate entity". This is a Corporate Veil.
What is Piercing the Corporate veil?
Court of law, using “equitable” powers, holds that a corporation’s owners are liable for the debts/liabilities of the corporation.
Under the following circumstance(s) the corporate veil can be pierced:
A. Failure to observe corporate formalities (doesn’t act like a corporation – then not
treated like one)
B. Commingling
assets
C. Inadequate capitalization (to give business a fighting chance)
D. fraud
E. All of the Above
E. All of the Above
Describe a publicly traded company
Company that has sold part of itself to the GENERAL PUBLIC. (IPO)
Can sell stocks on the NYSE.
Articles / Charter Content includes:
Name
Address and RA
Incorporator
Purpose
Stock Amount
Describe the Corporate Structure pertaining to Shareholders, Managers/Directors and Officers.
Shareholders elect Managers/Directors who elect Officers to run the company.
What is the market cap of a company that has
A. 3500 shares at $10/ share
B. 60,520 shares at $1/ share
C. 10,000 shares at $5/ share
A. $35,000
B. $60,520
C. $50,000
The right to ______, _______ and to _______ are all shareholder rights.
Vote (by proxy)
Information
Make Shareholder Proposals
Good faith; ordinary care; reasonable belief in the best interests of the corporation; no conflicts. This is the _______.
Business Judgement Rule
Obligation to act without a conflict of interest is the Duty of ______.
Loyalty
Some examples of Self-Dealing and Corporate Opportunity pertaining to the Duty of Loyalty includes:
taking corporation property for own use
interested party transactions
insider trading
Obligation to act in the best interests of the corporation is the Duty of ______.
Care
using the same care that an ordinarily prudent person in the same circumstances would use
