Bus Law 340 Ch 1

  1. Law:
    •  Law: A body of enforceable rules governing relationships and transactions between and among individuals and their society. U.S. law primarily takes the form of
    • Constitution
    • Statutes and Ordinances
    • Administration rules and regulations
    • Common Law
  2. Primary sources of law
    • A statement that established the law on a particular issue (US Constitution, statutes or laws passed by congress or state legislatures, FDA administration agencies, case law (court decisions) such as:
    • (1) constitutions setting forth the fundamental rights of persons living or working in the United States and a particular state, describing and empowering the various branches of government, and prescribing limitations on that power (US constitution(supreme law of land) and constitutions of various states);
    • (2) federal and state statutes (statutory law passed by congress or any level of state) and local ordinances (laws rules or orders passed by municipal or county not covered by state or federal);  A given statute might be based on a uniform law (e.g., the Uniform Commercial Code) or on a model act (e.g., the Model Business Corporations Act). However, each legislature is free to depart from the uniform or model text as it sees fit.
    • (3) administrative rules and regulations promulgated by federal, state, and local regulatory agencies; and
    • (4) common law, which is the body of judicial decisions interpreting and enforcing constitutional, statutory, or administrative law and governing those relationships and transactions that constitutional, statutory, and administrative law do not govern.
  3. Secondary Source of Law
    A publications that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in the law review.
  4. Uniform Law
    developed in 1800s by law scholars to uniform state laws for mainly trade. State does not need to adopt the law, or can partially adopt it.
  5. Administrative Law & Agency:
    • The body of rules, orders, and decisions issued by administrative agencies, such as the federal Securities and Exchange Commission or a state’s public utilities commission.
    • Affects: firms capital structure and financing, hiring and firing practices, employees n unions, manufacturing and marketing products.
  6. Administrative Agencies:
    • Agencies authorized by federal or state legislation to administer and enforce one or more statutes (e.g., the Internal Revenue Service).
    •  Executive Agencies: Agencies formed to assist the President or, at the state level, the Governor, in carrying out executive functions (e.g., the Federal Bureau of Investigation).
    • Independent Regulatory Agencies: Agencies neither designed to aid nor directly accountable to the legislative or executive branches (e.g., the Federal Reserve System).
  7. Enabling Legislation:
    One or more statutes creating an agency and specifying its purposes, functions, and powers.

    As a general rule, an agency lacks the power to act beyond the scope of its enabling legislation.
  8. Enabling Legislation
    Congress creates an administration agency by enacting enabling legislations, which specifies the name, composition, purpose, and powers of the agency being created.
  9. Rulemaking:
    • The process of formulating new regulations. Federal agency rulemaking typically occurs as follows:
    • Notice of Proposed Rulemaking: A proposed rule and some discussion of its rationale are published by the agency in the Federal Register. The notice invites public comment and notifies the public of the times and places of any hearings on the proposed rule.
    • Comment Period: Following publication in the Federal Register, the agency must allow ample time for public comment. The agency need not respond to all comments, but it must respond to any significant comments that bear directly on the proposed rule by either modifying the proposed rule or explaining why the modification was not made.
    • Final Rule: Once the final version of the rule is decided upon by the agency, it will be published first in the Federal Register and then compiled annually in the Code of Federal Regulations.
    •  Investigation: Both as part of the rulemaking process and as part of the enforcement of the rules, agencies can inspect regulated entities’ facilities or business records.
    • Enforcement: If an agency determines that an entity has violated one or more rules, the agency may take administrative action against the entity. When possible, the agency will seek the entity’s voluntary compliance, thus avoiding the expense and inconvenience of full-blown judicial or quasi-judicial proceedings.
    • Adjudication: If voluntary compliance is not forth coming, the agency and the entity will appear before an administrative law judge (ALJ) who will conduct a quasi judicial(or “court-like”) proceeding, the exact nature of which varies from agency to agency. The ALJ issues an initial order, which is subject to appeal to the agency’s governing board (e.g., the actual commissioners of the Federal Trade Commission). After disposing of any appeal, the agency issues a final order, which may be appealed to a designated court(e.g., the U.S. Court of Appeals for the D.C. Circuit).
  11. Case Law
    The rules of law announced in court decisions. Case law interprets statutes, regulations, constitutional provisions, and other case law. Governs statutory law and administrative law and is part of the common law tradition.
  12. Common Law
    The body of general law developed from custom or judicial decisions in English and US courts, not attributable to a legislature.
  13. Precedent
    A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.

    • Binding Authority: Any primary source of law a court must follow when deciding a dispute. This includes all constitutional provisions, statutes, treaties, regulations, or ordinances that govern the issue being decided, as well as prior court decisions that constitute controlling precedent in the court’s jurisdiction. (supreme court decision are the most binding)
    • Persuasive Authority: Any primary or secondary source of law which a court may, but which the court is not bound to, rely upon for guidance in resolving a dispute.
    • A prior judicial decision acts as binding precedent only when the subsequent court is applying the same law as the prior court; otherwise, the prior decision is only persuasive authority.
    • Departure from Precedent: a court decides the precedent is incorrect or that technological or social changes have rendered the law inapplicable, the court may rule contrary to the precedent. Overturned cases receive great publicity. Brown v Board of Edu
    Stare Decisis: The doctrine obliging judges to follow established precedent within a particular jurisdiction.
  15. Remedy:
    The means given to a party to enforce a right or to compensate for another’s violation of a right. Compensation in dollars.
    •  From their origin during the reign of Henry II, in the late Eleventh Century, common-law courts were typically classified as either “courts of law” or “courts of equity.”
    • Courts of Law were empowered only to award wronged parties money or other valuable compensation for their injuries or other losses.
    • Courts of Equity, by contrast, were empowered to award any manner of non-monetary relief, such as ordering a person to do something (a.k.a. “specific performance”) or to cease doing something (a.k.a. “injunction”). In most of the United States the courts of law and equity have merged. Nonetheless, American courts still recognize legal remedies and equitable remedies. 
    • Remedy: The means given to a party to enforce a right or to compensate for another’s violation of a right.
    • A party’s right to receive equitable relief and a court’s power to grant it depends upon the following:
    • Whoever seeks equity must do equity; 
    • Where the equities favor both parties, the dispute must be decided according to the law;
    • Whoever seeks equity must come to the court with “clean hands”; 
    • Equitable relief will be awarded only when there is no adequate remedy at law; 
    • Equity favors substance over form;
    • Whoever seeks equity must pursue the vindication of their rights vigilantly or risk having their claims barred.
    • Substantive law creates, defines, describes, regulates, restricts, suspends, and sometimes abolishes legal rights and obligations. Ex: works comp laws
    • Procedural law establishes and regulates the methods of enforcing or vindicating substantive legal rights. Ex: est the method in which the employee must notify the employer on workers comp
    • Civil law defines and enforces the duties or obligations of persons to one another. Criminal law, by contrast, defines and enforces the obligations of persons to society as a whole.
    • Cyberlaw: A growing body of law dealing specifically with issues raised by cyberspace actions and transactions.
    • National Law: Written and unwritten laws governing rights and obligations within a particular country.
    • International Law: Written and unwritten laws governing the relations between and among nations and between nations and the citizens of one or more other sovereign nations (e.g. ,the Geneva Convention on the Treatment of Prisoners of War, the Warsaw Convention on International Air Travel, the General Agreement on Tariffs and Trade).
    Federal Government: A form of government where states form a union and the sovereign power is divided between the national government and the various states.
  20. Separation of Powers
    • Our national government consists of three branches, each of which acts as a check on the others’ power:
    • The Legislative Branch (Congress) may override the President’s veto and define the Judiciary’s jurisdiction and must confirm judicial and high level Executive appointees; The Executive Branch (the President and executive agencies) may veto Congressional legislation and appoint federal judges; and The Judicial Branch (the Supreme Court and the lower federal courts) has the power to void Executive and Congressional acts if they are unconstitutional.
    • The Bill of Rights expressly reserves to the states all powers the Constitution, as amended, does not expressly grant the federal government.
     Commerce Clause: Article I, Section 8 of the U.S. Constitution empowers Congress “[t]o regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.” Since 1824, the Supreme Court has interpreted the Commerce Clause to permit Congress to regulate both interstate commerce (i.e., commerce between two or more states) and intrastate commerce (i.e., commerce within a single state),as long as the intrastate commerce at issue “substantially affects” interstate commerce.
    • Police Powers: As part of their sovereign powers, states possess the power to regulate private activities in order to protect or promote public order, health, safety, morals, and general welfare.
    • The “Dormant” Commerce Clause: When state regulations impinge on interstate commerce, courts must balance the state’s interest in the merits and purposes of the regulation against the burden that the regulation places on interstate commerce. Generally speaking, state laws enacted pursuant to the state’s police powers are presumed to be valid notwithstanding their effect on interstate commerce; however, if the state law substantially interferes with interstate commerce, it will most likely be held to violate the Commerce Clause (i.e., to be unconstitutional).
    Federal constitutional and statutory law and treaties supersede their state counterparts due to the Supremacy Clause, Article VI, Section 2 of the U.S. Constitution:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
  24. Preemption:
    Federal law is said to preempt a conflicting state or local law, regulation, or ordinance if federal law is so pervasive ( unwelcome influence), comprehensive, or detailed that it leaves state and local law no room to supplement it, or federal law creates a federal regulatory agency that is empowered to enforce federal law.
    • The first ten amendments to the U.S. Constitution comprise the Bill of Rights – a series of protections for individuals against various types of government action. The Bill of Rights, with certain notable exceptions, protects legal persons, such as corporations and sole proprietorships, as well as natural persons.  The protections afforded by the Bill of Rights are only against action by the federal government. In order to extend the same protections against actions by state and local governments, the U.S. Supreme Court has incorporated the protections afforded by the Bill of Rights into the following language of the Fourteenth Amendment:. . . .
    • No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    •  Most significantly, for our purposes, the Bill of Rights:  guarantees freedom of religion, speech, and the press, as well as the rights to peaceably assemble, and to petition the government [Amend. 1]; 
    • guarantees the right to keep and bear arms [Amend. 2];  prohibits unreasonable searches and seizures of persons or property [Amend. 4]
    • and guarantees fair payment for property taken for public use [Amend. 5]; 
    • guarantees the rights to due process of law, including indictment by grand jury [Amend. 5],
    • as well as the rights to a speedy and public (criminal) trial with the assistance of counsel and to cross-examine witnesses and to solicit favorable testimony [Amend. 6]; 
    • guarantees the right to trial by jury in both criminal cases [Amend. 6] and civil cases involving more than $20 [Amend. 7];
    • and prohibits excessive bails and fines, as well as cruel and unusual punishment [Amend. 8].
    • The First Amendment protects speech and similar forms of expression, including corporate political speech and symbolic speech, from excessive government restriction or regulation. 
    • Symbolic speech includes all forms of expressive conduct, including gestures, movements, and clothing.
    • Government may restrict commercial speech (i.e., advertising) as long as the restriction. Ex: must meet two-part perception test: if the "intent to convey a particularized message was present" and "if the likelihood was great that the message would ne understood by those who viewed it" i.e. obscene facebook posts. (2) beer label flipping off ruled in favor of the label because it did not advance the effort to reduce vulgarity and there were less intrusive alternatives like restriction on distribution.
    • (1) promotes a substantial government interest,
    • (2) directly advances said interest, and
    • (3) is no more restrictive than necessary in order to achieve the substantial government interest.
    • Unprotected speech: Government may prohibit certain types of speech, for example:
    • speech (i.e., slander) or writing (i.e., libel) that defames or harms the good reputation of another person,  threatening or “fighting” words, and  obscene or pornographic speech.
    • Ex: Facebook posts protected by first ammendment
    • An increasingly significant constitutional issue is the extent to which the First Amendment’s protection of free speech covers the content of web sites and messages transmitted over the Internet.
    • In 1996, Congress passed the Communications Decency Act. Two years later, Congress passed the Child Online Protection Act. The U.S. Supreme Court found both acts to be unconstitutional. One approach employers, schools, and parents have taken to restrict their employees’, students’, and children’s access to inappropriate material is to use one or more types of filtering software. 
    • Children’s Internet Protection Act (CIPA): Federal law requiring public schools and libraries to block children from accessing adult content, based on the meta tags, or key words, appearing on the blocked site. In United States v. American Library Association (2003),the Supreme Court held that CIPA did not violate the First Amendment.
    • (Protect Act) 2003. congress enacted Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act and Virtual Pornography.
    • The First Amendment also provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” 
    • The establishment clause generally prohibits government from establishing a state-sponsored religion or passing laws that promote or show a significant preference for one religion over another, or that impose a significant burden on one or more religions. (includes separation of church and state, it does not require complete separation) Ex: school prayer, state vouchers to pay tuition at religious schools, evolution vs creation. 
    • The free exercise clause generally prohibits government from compelling anyone to do something contrary to his religious beliefs or restricting anyone’s legitimate exercise of his religious beliefs, except where public policy or public welfare require government action.
    • Ex: can be overruled in case of injections given to children for public safety reasons.
    • The key to analyzing a federal or state law or regulation as it relates to these provisions is to focus on the primary effect of the law or regulation, not any secondary effect. As long as the law or regulation does not promote or place a significant burden on religion, it will not be deemed unconstitutional simply because it has some impact on religion.
    • Strict Scrutiny: if a law or action inhibits some persons exercising a fundamental right, the law or action will be subject to strict scrutiny. Must promote a compelling govt interest i.e. remedying past unconstitutional or illegal discrimination. Award minority construction contracts based on prior discrimination. (? affirmative action?)
    • Intermediate Scrutiny: applied in cases involving discrimination based on gender or legitimacy. i.e. pregnancy (women), rape (men)
    • The "Rational Basis" Test: Matters of economic and social welfare might be considered valid if there is any conceivable "rational basis" on which it might relate to a legitimate government interest. Ex: push cart on city limited to a few vendors is upheld if the city offers a rational basis such as reducing traffic. Almost impossible for a law or action to fail a rational basis test.
    • Procedural Due Process requires that any government decision to take life, liberty, or property must be made fairly, giving the persons from whom life, liberty, or property is to be taken prior notice and the opportunity to be heard by an impartial decision maker.
    • Substantive Due Process requires that the interest of the state to be served by any law or other governmental action be weighed against the right of the individuals against whom the law or action is directed.
    • A fundamental right (e.g., free speech, interstate travel, privacy) will be protected unless the government can show a compelling state interest (e.g., public safety).  In all other cases, a law or action will not violate substantive due process as long as it is rationally related to any legitimate governmental purpose.
    • The Fourteenth and Fifth Amendments, respectively, prohibit any state or the federal government from denying “any person within its jurisdiction the equal protection of the laws.”
    • Like substantive due process, the equal protection clauses require the substantive effect of a law or other government action be weighed against the right of the individuals against whom the law or action is directed. If the law or action inhibits a group’s exercise of a fundamental right or if it embodies a classification based on a suspect trait (e.g., race, national origin), the law or action is subject to strict scrutiny, and will only be upheld if it serves a compelling state interest. 
    • If the law or action embodies a classification based on gender or legitimacy, it is subject to intermediate scrutiny, and will only be upheld if it is substantially related to important government objectives. 
    • If the law or action inhibits only rights related to economic or social welfare, it will be upheld so long as there is any rational basis on which the classification might relate to a legitimate government interest.
    • Despite the lack of any explicit right to privacy in the Bill of Rights, the courts have implied a fundamental right to personal privacy from the provisions of the First, Third, Fourth, Fifth, and Ninth Amendments.
    • In addition, Congress has passed a number of statutes protecting individual privacy, including the
    • Freedom of Information Act, which affords individuals access to information collected about them by the federal government, and the
    • Health Insurance Portability and Accountability Act(HIPAA), which requires health-care providers and health-care plans, including certain employer-sponsored plans, to inform patients/plan members of their privacy rights and to safeguard personal medical records from disclosure for non-health care purposes.
    • Congress has also passed legislation authorizing government encroachment into individual privacy –most notably, The USA Patriot Act, enacted in 2001,which empowered government agencies to access and monitor electronic, financial, and other personal data and communication.
    • Ex: 1960s Griswald v Conn contraceptives paved the privacy rights.
    • Ex: Full body TSA searches at airports constitutional because it furthers a compelling governmental interest, however the public agency violated the "Administrative Procedure Act" by changing its regulations without using the rulemaking procedures.
  34. Majority Opinion
    A court opinion that represents the views of the majority (more than half) of the judges or justices deciding the case.
  35. Concurring Opinion
    A court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority's opinion.
  36. Dissenting Opinion
    A court opinion that presents the views of one or more judges or justices who disagree with the majority decision
  37. Plurality Opinion
    A court opinion that is supported by the largest number of the judges or justices hearing the case, but less than half of the total number.
  38. Per Curiam Opinion
    A court opinion that does not indicate which judge or justice authored the opinion.
  39. Lewis is a state court judge. Like other judges, Lewis often refers to secondary sources of law for guidance. These sources include
    official comments to statutes.
    other states' statutes.
    state constitutions.
    the U.S. Constitution.
    official comments to statutes.
  40. In most states, the courts no longer grant "equitable" remedies. TF
  41. Political speech that would otherwise be protected by the First Amendment is prohibited if its source is a corporation. TF
  42. The Bill of Rights protects individuals against types of interference by the states. TF
  43. In a suit against Clem, Dona obtains the cancellation of a contract. This is
    an injunction.
    specific performance
    specific performance
  44. The Federal Trade Commission (FTC) is a government agency that issues rules, orders, and decisions. The Georgia state legislature enacts statutes. The Jackson County Board and the Peach City Council enacts ordinances. Administrative law includes
    all law that affects a business's operation.
    the rules, orders, and decisions of the Federal Trade Commission.
    statutes enacted by the Georgia state legislature.
    ordinances created by the Jackson County Board and the city council of Peach City, Georgia.
    the rules, orders, and decisions of the Federal Trade Commission.
  45. Cordial Drinks, Inc., markets alcoholic beverages. A federal regulation bans the disclosure of the alcohol content of liquor on Cordial's labels and those of other marketers. A court would likely hold this regulation to be
    an unconstitutional restriction of speech.
    constitutional under the First Amendment.
    justified by the need to protect individual rights.
    necessary to protect national interests.
    an unconstitutional restriction of speech.
  46. State agency regulations take precedence over conflicting federal agency regulations. TF
  47. The First Amendment requires a complete separation of church and state. TF
  48. The federal government cannot regulate commerce within a state, regardless of the effect of the commerce on other states. TF
  49. In Export Co. v. Imports, Inc., there is no precedent on which the court can base a decision. The court can consider

    neither public policy nor social customs and values.
    public policy only.
    public policy or social customs and values.
    social customs and values only.
    public policy or social customs and values.
  50. The Bill of Rights protects individuals against types of interference by the federal government.
  51. Orin claims that a Pennsylvania state statute infringes on his "substantive due process" rights. This claim focuses on

    procedures used to make decisions to take life, liberty, or property.
    the content of the statute.
    the similarity of the treatment of similarly situated individuals.
    the steps to be taken to protect Orin's privacy.
    the content of the statute.
  52. Theoretically, Congress can regulate every commercial enterprise in the United States TF
  53. Business Markets Coalition (BMC), a political lobbying group, wants a certain policy enacted into law. If BMC's policy conflicts with the U.S. Constitution, a law embodying it can be enacted by

    any state legislature and Congress.
    any state legislature but not Congress.
    Congress but not any state legislature.
    none of these choices.
    none of these choices.
  54. International law is the law of a foreign nation and varies from country to country. TF
  55. A court's direction to a party to do or to refrain from doing a particular act is a rescission.
  56. Rules and regulations adopted by federal administrative agencies are compiled in the Code of Federal Regulations. TF
  57. Krystal is a federal judge. Krystal's judicial decisions are part of case law. This law includes

    interpretations of primary sources of law. These sources administrative regulations.
    articles in law reviews and other legal journals.
    compilations summarizing court decisions on particular topics.
    legal encyclopedias.
    administrative regulations.
  58. A federal law that conflicts with the U.S. Constitution will be deemed unconstitutional.
  59. Florida public policy is to protect consumers from unfair and deceptive business practices. A state statute declares unenforceable any waiver of its provisions, which include a provision for consumer class actions. WISP Inc. requires its customers to sign an agreement that designates South Dakota courts and law to govern all disputes. In a suit by a group of Florida consumers against WISP, the court is most likely to rule that the agreement is, under the principles discussed in "A Sample Court Case," Doe 1 v. AOL
    enforceable because there is no reason not to enforce it.

    enforceable because the parties had equal "bargaining power.

    "unenforceable as a violation of Florida policy and law.

    unenforceable as a violation of South Dakota policy and law.
    "unenforceable as a violation of Florida policy and law.
  60. Criminal law focuses on duties that exist between persons. TF
  61. Congress enacts a law prohibiting toys made in China from being sold in the United States. The Hawaii state legislature enacts a law allowing the sale of Chinese-made toys. Hawaii's law will most likely

    rendered invalid under the supremacy clause.

    rendered valid the free exercise clause.

    struck down under the due process clause.

    upheld under the commerce clause.
    rendered invalid under the supremacy clause.
  62. The basis for the U.S. legal system is the natural law system. TF
  63. The Securities Exchange Commission is an administrative agency. The chief purpose of such agencies is

    act as liaisons between federal and state governments.

    impose uniform laws on the states.

    perform specific government functions.

    standardize laws for the executive and judicial branches.
    no protection.
  64. When there is a direct conflict between a federal and a state law, the state law is rendered invalid.
    Question options:TrueFalse
  65. Mike, an advocate of a certain religion, publishes an article in New Times magazine insisting that Congress base all federal law on his religion's principles. The First Amendment guarantees Mike's freedom of

    religion only.

    speech only.

    the press only.

    religion, speech, and the press.
    religion, speech, and the press.
  66. Mary claims that a Nebraska state statute infringes on her "procedural due process" rights. This claim focuses on

    procedures used in making decisions to take life, liberty, or property.

    the content of the statute.

    the similarity of the treatment of similarly situated individuals.

    the steps to be taken to protect Mary's privacy.
    procedures used in making decisions to take life, liberty, or property.
Card Set
Bus Law 340 Ch 1
Bus Law 340 Ch 1