Name: ______
Week 1 Study Guide: Chapters 1 & 3
Instructor’s Note: Please utilize and complete this study guide as you read. The questions are listed in the order in which the material appears in the text. You can type your answers directly into this Study Guide or type them into a separate Word document. If you would prefer to handwrite it, you may handwrite it and scan and email your handwritten answers to me. Once you have completed it, I would encourage you to use it when completing the weekly Quiz that covers the week’s material! Additionally, please email me a copy of your Week 1 Study Guide by 11:59PM on Sunday,May 31, 2015. The subject line of the email containing your Study Guide MUST read as follows: Your Name – Business Law – Study Guide Week 1.You will earn40 points for the completion of this week’s Study Guide!
Chapter 1: The Historical and Constitutional Foundations of Business Law
What are the two sources of law in America?
United States government and each State Government
Familiarize yourselves with the four general types of primary sources of law. Please list them in the space below:
Federal and State Constitutions
Laws – Statutes enacted by Congress and State Legislatures
Federal Regulations
Case Law
What are secondary sources of law?
Legitimate publications that examine and extend the discussions around law. Journals, academic and association papers, and case law reviews are examples.
What is constitutional law?
Law based upon either the U. S. Constitution or any State Constitution.
What is statutory law?
Laws enacted by Congress or the Legislature of a State Government. Supplanted by laws (generally Ordinances) enacted by local governments where deemed necessary and not covered by either Federal or State statutes.
What is the name of the law that facilitates commerce among the states by providing uniform rules that govern commercial transactions?
In recent years, the IRS has come under scrutiny for their treatment of certain political groups. Many articles have been written about the fact that the IRS has the ability to make its own rules that are not approved by Congress before going into effect. What is the name of the type of organization (such as the IRS) that is established to perform a specific governmental function? What is the type of law created by these organizations?
Administrative Agency.
Administrative Laws applied by Administrative Process..
Please list and describe some of the powers possessed by administrative agencies:
Rule-making;
Investigarion and enforcement; prosecution
Adjudication.
What is the term used to refer to judge-made law?
Case Law
What is the term used to refer to a court decision that guides the way in which later cases are decided?
Precedent
What is the effect of “stare decisis” on judicial decision-making?
Enforcement of procedures that govern multiple decisions.
When can a court depart from precedent?
When the court finds that the basis for a precedent decision is faulty.
When the court finds that societal changes have made the precedent obsolete.
What is a remedy?
What is the name of the individual or organization who brings a lawsuit?
What is the name of the individual or organization against whom a lawsuit is filed?
Don’t get too confused about the last paragraph on Page 7 that goes to Page 8. Essentially, you should know that there are two types of remedies—remedies at law and remedies at equity. Remedies at law give successful plaintiffs the relief to which they are entitled under the law. Remedies at equity are granted only when remedies at law are inadequate. Please list one type of remedy at law and one type of remedy at equity in the space below:
Remedy at Law – judgement against a Defendant awarding cash or equivalent goods as compensation.
Remedy at Equity – change local laws discriminating against dance clubs for youth.
Please define substantive and procedural law and please know the differences between these two types of law. Assume that you got a traffic ticket while speeding to Tri-C West. Before you vow only to take online courses in the future, you plan to challenge the ticket. Which of these two laws would govern the legal procedure by which you challenge the ticket?
Please define civil and criminal law and think about which type of law would apply in a specific situation. Assume that the police officer who has stopped you offers to let you go if you can identify whether the laws governing speed limits are civil or criminal law. What would you tell the police officer?
What is national law?
Laws of a nation in force at a given time.
What is international law?
Laws that apply to multiple nations (United Nations for example).
What is the supreme law in America?
Common Law.
What form of government was created by the U.S. Constitution?
A Constitutional Republic.
Understanding the way in which power is divided between the federal government and the states in America’s system of government is one of the most important concepts of this chapter. In your own words, please explain how power is divided between the federal government and the states.
Federal Law is typically oriented to the health and welfare of nation-at-large (control of commerce, defense, distribution of grants and loans to states and cities, etc.).
State Law is typically oriented to specific political, economic and or social issues within state borders (investment in infrastructure, taxation of property, goods and services, law enforcement).
Please define and explain the concepts of separation of powers and checks and balances:
What is the name of the clause in the Constitution that has had the greatest impact on American business?
What is the difference between interstate and intrastate commerce? To which type(s) of commerce does the Commerce Clause apply in the 21st Century?
What are police powers?
State regulations covering economic health, welfare and protection of the citizens.
Please describe the concept of the Supremacy Clause. Assume that Congress passes a national 70MPH speed limit and the state of Ohio passes a statewide 80MPH speed limit. Based on the Supremacy Clause, which law will triumph and why?
What is the Bill of Rights? Please define and summarize the 1st, 2nd, 4th, 5th, 6th, and 10th Amendments.
(hint, K – Page 40 of textbook)
As the book says, the Bill of Rights was only intended to govern and curb the powers of the national government. However, this is no longer the case and the Bill of Rights now applies to local and state governments. Which amendment applied the Bill of Rights to state actions?
Professor Fell can’t resist a jelly donut, so you decide to stop by the Dunkin’ Donuts near Tri-C West in order to buy him a dozen in the hopes that doing so will motivate him to give you bonus points. When you arrive, you find out that they are out of jelly donuts and that they only have cream-filled donuts (which he hates). You are frustrated and you begin telling your fellow customers that Dunkin’ Donuts uses spoiled milk in their food. A uniformed Dunkin’ Donuts employee escorts you from the premises and stops you from yelling.You tell him that you plan to sue Dunkin’ Donuts under a First Amendment violation. He laughs and says “Go ahead, you’ll lose!” Unfortunately for you, he is right. Why is he right?
Your shouted comments can be viewed as without evidence; defamatory – ruining good reputation of an established consumer outlet. Free Speech protection will not be recognized.
Can a government impose any restrictions on an individual’s freedom of speech? If so, what are the types of restrictions that can be imposed?
Are the First Amendment’s free speech rights limited to individuals? If any other types of entities have them, please identify who has them:
What is commercial speech?
What are the three requirements for a restriction on commercial speech to be valid?
TRUE or FALSE: The First Amendment protects all speech
False
Please identify and describe the two parts of the First Amendment’s guarantee of freedom of religion:
Which part of the First Amendment’s guarantee of freedom of religion would invalidate a law that requires all public school teachers to be Christian?
Which part of the First Amendment’s guarantee of freedom of religion would prohibit a public school from holding a principal-led Christian prayer meeting during the school day that all students were required to attend?
The concept of due process can be a bit complicated. Essentially, the Constitution’s guarantees of due process ensure that an individual cannot have their life, liberty, or property taken from them by the government unless the government does so in a manner that complies with existing law. This is why a government cannot condemn a run-down house without first going through the legal system and this is why an individual accused of first-degree murder has the right to trial by jury and must first be convicted before they can be put to death. What are the two types of due process? Please identify and describe them and please be sure to understand the difference between them.
What is the name of the clause that prohibits the government from treating two similarly situated individuals differently? (For your reference, two “similarly situated” individuals can be thought of as two individuals of the same age, gender, etc.)
Privacy rights have been a controversial topic since America’s inception and will undoubtedly continue to lead to heated discussion far into the future. Is this right explicitly mentioned in the Constitution? In addition, please know the various types of Federal legislation related to privacy.
Please be sure to read pages 37-43. This material will assist you with understanding much of the other material that we cover in this course. Additionally, understanding this material is crucial to successful completion of the Case Brief Assignment. Information about this assignment will be posted shortly.
After reading the material on Pages 37-41, please answer the following question: Mr. Bates sues Mr. Thomas in civil court. What will the name of the case be on the trial level?
What are some other names that are used to refer to the plaintiff?
What are some other names that are used to refer to the defendant?
When is a unanimous opinion written?
What is a majority opinion?
What is a concurring opinion?
What is a dissenting opinion?
What is a plurality opinion?
What is a per curiam opinion?
What is the purpose of “briefing” cases? (Please take a look at the sample case brief on the bottom of Page 42.)
What is contained in the “Facts” section of a case brief?
What is contained in the “Issue” section of a case brief?
What is contained in the “Decision” section of a case brief?
What is contained in the “Reason” section of a case brief?
Chapter 3: Courts and Alternative Dispute Resolution
What is the essential role and job of the judiciary in the American governmental system?
What is judicial review? How does this affect other branches of government?
Please list and describe the three basic requirements that must be satisfied before a court can hear a lawsuit:
Jurisdiction can be a complicated concept. Essentially, a court can only hear and handle a case that involves two individuals or organizations over whom the court has authority and power. Power can be obtained in one of two ways. Courts obtain power over people (in personam jurisdiction) when those people reside or are present in a geographical area over which the court has the legal power to handle violations of laws or legal disputes. (For example, Cleveland Municipal Court has the power to punish anyone who breaks the laws of the city of Cleveland. It does NOT have the power to punish those who break the laws of Rocky River, OH—Rocky River Municipal Court has the power to punish those individuals.) Courts also obtain power over property (in rem jurisdiction) that is found within the geographical area over which the court has authority to handle violations of laws or legal disputes. If a court does NOT have jurisdiction over BOTH parties involved in with a specific legal dispute or issue, a court CANNOT issue a legally binding ruling or judgment with which the parties must comply. Based on these ideas, would Parma Municipal Court have the power to punish a resident of Westlake who broke into a car at Parmatown Mall and stole an iPhone? (You may safely assume that theft is illegal in Parma.)
The concepts of jurisdiction can be complicated; please do your best to understand these concepts and ask me questions via email or on the Discussion Board if necessary. I would also recommend that you watch the videos that explain jurisdiction that have been posted on Blackboard. Long-arm jurisdiction is an advanced concept within the general topic of jurisdiction. Essentially, long-arm jurisdiction allows a court to hear a case involving an out-of-state defendant if that out-of-state defendant did sufficient business within that state. As discussed in the text, business contacts can be made either in person or via the Internet. Based on this idea, would a resident of Cleveland who suffers from food poisoning after eating spoiled food that was served at a Burger King (a company incorporated in Delaware) location in Cleveland be able to sue Burger King in an Ohio court?
What is the name of the courts that have the jurisdiction to handle bankruptcy proceedings?
What is the difference between original and appellate jurisdiction? Assume you head to trial in Parma Municipal Court regarding the speeding ticket that you were issued while speeding to Tri-C West. Is Parma Municipal Court a court of original or appellate jurisdiction? Why?
Federal courts only handle cases that involve one of two situations. The two situations are federal question cases and diversity of citizenship cases. Federal question cases are cases that involve violations of federal law or disputes involving federal law. For the purposes of this class, please know that diversity of citizenship cases are cases that involve individuals of two different states in which the amount in dispute is more than $75,000. Assume that the individual who stole the iPhone in Parma and violated Parma law wants to have his case handled in federal court because he believes that the judges are more qualified than those in Parma Municipal Court. (You may assume that an iPhone is worth $699.00) Would he be able to have his case heard in federal court? Why or why not?
Please explain the concepts of concurrent and exclusive jurisdiction. Please refer to Exhibit 3.1 on Pg. 671. What are some areas over which federal courts have exclusive jurisdiction? What are some areas over which state courts have exclusive jurisdiction?
Please read the three detailed concepts of Internet jurisdiction on Pg. 71 and do your best to understand the concepts discussed in the last two paragraphs on this page. Understanding how jurisdiction can be established for businesses engaging in e-commerce is extremely important in the 21st Century! Please don’t hesitate to ask me questions via email or on the Discussion Boards if you would like clarification about any of these topics. What are the three ways in which a state government can establish jurisdiction over an out-of-state business defendant?
TRUE or FALSE: An Ohio business with a website that is available to all Americans on the Internet for viewing can potentially be sued by someone in Maryland even if the owner of the business has never once physically set foot in Maryland.
Please read Case 3.2. Why did the Court have the authority to hear a case involving a Chinese citizen?
The second requirement for hearing a lawsuit that you should understand is venue, which deals with the physical location for a trial. What is the general policy involving venue?
The third requirement for hearing a lawsuit that you should understand is standing to sue. What does an individual need to have in order to have standing to sue?
What are the two major types of court systems?
What are the four general levels of a state court system?
What is a small claims court?
What is a question of fact?
What is a question of law?
When will an appellate court challenge a trial court’s finding of fact?
What are the three tiers of the federal court system? Please be familiar with the functions of each tier.
How many judges must agree to hear a case before the entire US Supreme Court will hear it?
What is the term for the order that is issued once the US Supreme Court agrees to hear the case that allows the Court to obtain the lower court records of the case?
Please pay special attention to the remainder of the material; it covers the process through which a case works its way through a court.