Business Law

Question 1

Law definition

Answer 1

Body of rules of conduct put in by controlling authority that has binding legal force

Question 2

Ethics definition

Answer 2

Principles governing what constitutes right and wrong behavior

Question 3

Stare Decisis

Answer 3

“Stand on decided cases”
Judge-made law
Each decision and interpretation creates precedent
Makes changing the law very slow

Question 4

What if there is no precedent?

Answer 4

Courts often look for guidance from persuasive authorities

Question 5

How precedent goes overturned?

Answer 5

Precedent is clearly wrong/outdated.

Question 6

Legal Reasoning (IRAC/CRAC)

Answer 6

-Issue
-Rule
-Application/Analysis
-Conclusion

Question 7

Criminal Law Definition

Answer 7

Concerned with wrong committed against the public as a whole
Prosecuted by public officials (district attorney)

Question 8

Civil Law Definition

Answer 8

Rights and duties that exist between persons and between persons and their governments as well as the relief available when a person’s rights are violated
*Typically – private party sues another
private party who has failed to comply with some duty

Question 9

Constitution established the Federal Form of Government:

Answer 9

Shared power between national and state governments

Question 10

10th Amendment

Answer 10

Reserves unto the states all powers not specifically delegated to the Federal Government

Question 11

Police Powers

Answer 11

Regulate private activities to promote health, safety,

Question 12

Full Faith and Credit Clause

Answer 12

-Applies to only civil matters
-Rights established under deeds, wills, contracts, and other similar instruments in one state will still be honored in other state
-Ensures any judicial decision with respect to such property rights shall be honored and enforced in all states

Question 13

Commerce Clause

Answer 13

Article 1 Section 8
Most important clause to Business
Gives Fed Govt. the Exclusive Right to Regulate Interstate Commerce

Question 14

Symbolic Speech

Answer 14

Projected subject to reasonable restrictions

Question 15

Content-Neutral Laws

Answer 15

Laws that regulate time, manner, and place, but not content of speech, receive less scrutiny than do laws that restrict consent of expression

Question 16

Compelling government interest test

Answer 16

Govt. interest is balanced against individuals rights to free expression

Question 17

Establishment Clause

Answer 17

Prohibits govt from establishing a state-sponsored religion or pass laws based on religious

Question 18

Free Exercise Clause

Answer 18

Guarantees people can hold any religious beliefs they want, restricts only the actions of the govt

Question 19

4th Amendment

Answer 19

Unlawful search and seizure (probable cause)

Question 20

5th Amendment

Answer 20

Plead the 5th, self-incrimination, applies to only natural person, not corporations or partnerships BUT does apply to sole proprietors/practitioners

Question 21

Important components of BPM

Answer 21

process modeling and business activity monitoring (BAM)

Question 22

Porters Competitive Forces Model

Answer 22

Best known framework for analyzing competitiveness

Question 23

Judicial Review

Answer 23

Process for making a determination of whether the laws/actions of the other 2 branches are constitutional
Marbury vs. Madison 1803

Question 24

Jurisdiction in personam vs. in rem

Answer 24

In personam- personal jurisdiction – jurisdiction over a person or business that resides/does business in a certain geographic area
In rem - jurisdiction over the thing- property that is located within a court’s boundaries

Question 25

Long-arm statutes

Answer 25

a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state

Question 26

Corporation definition

Answer 26

Normally subject to personal jurisdiction in the state - In which is incorporated - has its principal office - is doing business

Question 27

General vs. Limited Jurisdiction

Answer 27

General - unlimited (state trial, federal district courts) Limited - (probate court, juvenile court, bankruptcy court)

Question 28

Subject Matter Jurisdiction can be limited by:

Answer 28

- Subject of lawsuit - Sum/amount in controversy - Whether case is felony/misdemeanor - Whether proceeding is a trial or appeal

Question 29

Original vs Appellate Court

Answer 29

Courts having original jurisdiction (trial courts/federal district courts), where lawsuits begin, trials, evidence Appellate act as reviewing courts (appeal from an order or judgement of a trial or lower court)

Question 30

Jurisdiction is limited to 2 situations:

Answer 30

Federal question is involved or where there is diversity of citizenship

Question 31

Concurrent vs Exclusive Jurisdiction

Answer 31

Concurrent - when both federal and state courts have power to hear a case Exclusive - when cases can be tried only in federal courts or only in state court

Question 32

Sliding Scale Standard

Answer 32

When the defendant conducts substantial business over the internet (such as contracts and sales), jurisdiction is proper

Question 33

Venue (Civil vs Criminal)

Answer 33

Most appropriate location for trial (Civil - typically where defendant resides/does business) (Criminal- normally where crime occurred)

Question 34

Standing to Sue

Answer 34

Sufficient stake in a matter to justify seeking relief through the court system (A legally protected interest at stake in the litigation)

Question 35

3 Elements of Standing (to sue)

Answer 35

Harm - Causation - Remedy -

Question 36

Advantages over Litigation:

Answer 36

Flexibility Privacy Can be cost/time effective

Question 37

3 main types of Alternative Dispute Resolution (ADR)

Answer 37

Negotiation Mediation Arbitration

Question 38

Problem/Issue of Arbitrability

Answer 38

When one party files a lawsuit to compel arbitration, it is up to the court to resolve issue of arbitrability *Court must decide whether matter is one that must be resolved through arbitration

Question 39

Forum-Selection & Choice-of-Law Clauses

Answer 39

Designate the jurisdiction (court or country) where any dispute arising under the contract will be litigated and which nation’s laws apply * Not just international – we see this a lot in contracts here! Ex-prenuptial agreement Arbitration Clauses often included in int'l contracts

Question 40

Trials require due process, which means

Answer 40

which requires adequate notice and a fair and impartial hearing. *Rules are in place to provide/ensure due process *For example, all civil trials in federal court are governed by the Federal Rules of Civil Procedure.

Question 41

3 stages of Litigation

Answer 41

PreTrial, Trial, Post Trial

Question 42

PreTrial Procedures

Answer 42

Consulting an Attorney *Pleadings – Complaint, Answer, etc. *Discovery *Mediation *Pre-Trial Conference (civil and criminal) *Jury Selection (not applicable to bench trials)

Question 43

3 types of Fees

Answer 43

Fixed, Hourly, Contingent (No such thing as a non-refundable retainer)

Question 44

4 Pleadings in order

Answer 44

Complaint (Plaintiff to Defendant) Answer (Defendant to Plaintiff) Counter-Claim (Defendant to Plaintiff) Reply (Plaintiff to Defendant)

Question 45

Default Judgements

Answer 45

Occurs when party is served in a timely manner and served party does not respond in timely manner Filing fee associated with the motion Gives the moving party the relief it requested - usually hearing required before order is entered

Question 46

Motion to Dismiss

Answer 46

Before answer filed for certain grounds -Also if case resolved or Plaintiff decides not to proceed with litigation

Question 47

Motion for Judgement on the Pleadings

Answer 47

Decide solely on pleadings, no trial – only if no dispute over facts and only issue is a question of law

Question 48

Motion for Summary Judgement (SMJ)

Answer 48

No trial, no facts in dispute, only issue is a question of law – can introduce (admissible) affidavits and evidence

Question 49

Discovery

Answer 49

Process by which parties obtain information from the opposing party prior to trial. ** Each party must answer all relevant questions the other party asks.**

Question 50

Purposes of Discovery

Answer 50

Prepare for trial *No “surprises” at trial *Encourage parties to settle before trial *95% of all cases settle before trial

Question 51

Common types of Discovery

Answer 51

Depositions *Interrogatories *Requests for Documents, Objects and Inspections *Requests for Examination *Requests for Admission

Question 52

Pre Trial Conference

Answer 52

After discovery meeting between attorneys and judge *Explore additional possibilities of settlement *Identify “issues in dispute” for jury to consider *Judge issues order with deadlines, trial date, etc

Question 53

Jury Selection

Answer 53

Seventh Amendment Right to a Jury Trial (may be waived if both parties agree) *Voir Dire - is a juror or witness “fit” *Jurors may be dismissed for no reason (peremptory strikes) or for cause (bias) * BUT – you cannot exclude jurors on basis of race, gender, etc. Batson v. Kentucky (1986)

Question 54

Order of Events at Trial

Answer 54

1. Opening Statements 2. Introduction of Evidence through witnesses 3. Motions 4. Closing Arguments 5. Jury Instructions and Verdict

Question 55

Post-Trial

Answer 55

Post-Judgment Motions / Appeal *In a Criminal Trial only the Δ may appeal *In a Civil Trial either “loser” (π or Δ) may appeal *The “loser” has a time limit to file an appeal *The appeal considers only the “record” of the trial – no new evidence or arguments