BLW2021GreNotes2 - BLW 2021 Legal & Ethical Env....

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Unformatted text preview: BLW 2021 Legal & Ethical Env. Business Professor Greenberg Spring 2003 Notes 1/21-book is the same as last term. Office hours are during club hour or late in the evening Brm 319 email [email protected] Source of law where does it come from w/in the us. There are four source that we can identify: us constitution (supreme law of the land), Supreme Court case interrupting the constitution; statuary law, law passed by a legislative branch; administrative laws, made by the depts. In the government connected t the executive branch. Not all administrative groups are connected to the executive; case law- things decided by the judicial branch of the government. Each branch in its own way makes law. There are two types of levels: state and federal. 51 constitution in the US one federal and 50 state ones. The split btw the feds and state is federalism. If there is a contradiction btw fed and state, fed wins. The other way that power is divided is through the separation of powers by having executive, legislative and judicial. "Check and balances" are how the different branches deal with each other. Where does our legal system come from= England, which is known as a common law jurisdiction. They look back into cases from before to see what the outcome will be. You want to find cases with similar facts, which are called a president case. Because that is the common law system "stare decisis"= let the decision stand. Unless there is a really good reason to change. There might be differences w/in the material difference. And if times have changed and you can argue that judge was wrong. What is the level of stare decisis allows for consistency and expectations but still allow for flexibility. 1/23- common law: where does it come from? England going back to the late 11 century. Beginning of a movement to unify the laws from around the land of England. Civil law, is not based on stare desisic, it is based on codes and statues, which are statements of legal principals. Roman law was largely a civil law system. Hamarabi code was also a civil law. Jewish law was mixed but is more civil law. There is one state in the us that follows the civil law state Louisiana, was settled by the French. France is a civil law country. Same with Germany, and Italy are also civil law countries. Civil law and criminal law: civil law refers to the relationship btw private parties. If you want to win a case involving civil law you need to have a preponderance of evidence. Which is made than half. it has nothing to do with the number of jurors it has do to with the evidence. Criminal law relationship btw one person and society. When someone commits a crime they break the law that society set up even though it might just go against one person. The district attorney brings in the case for the people. In NY the people vote the DA in. On the federal level they are called US attorney. The DA had to prove beyond a reasonable doubt, which is higher, and then what is need for civil law. When does double jeopardy fall into place? For criminal and criminal cases. In criminal law you are going to jail and in civil it is for money. Substantive vs. perpetual law. Persejural law has to do with what you go through to get to court. Substantive law deals with the law that is my rights. Having substantive law w/o persejural law there is no point. Both of them exist on both the federal and state level. Every court is different on how things are done. CPLR and CPL. Law vs. equity: law or courts of law or legal remedy and a black or white approach. That almost always involve dollars it is done with a more formal. Court of equity is based on notions of fairness and doing the right thing. Looking at one side and looking at the other side and figuring something out. The typical equitable remedy the to tell the person to do something or not to do something. Why is it note worthy to know the Downloaded from: BLW2021GreNotes2.pdf Page 1 of 6 BLW 2021 Legal & Ethical Env. Business Professor Greenberg Spring 2003 Notes difference? B/c back in England there were to different types of court. Now of days in the US law and equity are merged, the courts can give both remedies. 2/6-cultural relativism: different cultures have different culture system. Ethical relativism: ethics and standards will change based on procession. Imparities: A priori ethics: is that there is a fixed absolute way to behave. Situational ethics: there are fixed ways to act, but they might be some expectation to the rule depending on the situation. Corporate social responsibility: how does the company see itself within the social structure. 2/11- when wanting to sue someone I have to figure out where and which level I can sue the person. Subject matter juridicision: refers to the type of case a court can hear. Court of general juridiciosn: can hear any type of case. Limited juridicision: can only hear certain types of case. If you get to choose btw the two courts it is usually better to go to limited court. If you try to go to a general court, when the case can go to limited, they will put you into limited. If you want to change your name legally, money might be a factor. Executive juridicision: is one that executive power to hear a certain type of case. Concordant juridicision: where more than one court can handle the case. The whole federal court system in limited court. Two ways to get your case into federal court: federal question case-one that question us constitution, law or rule. The second diversity of citizenship-means that the plaintiff comes from a state different than the defendants. The plaintiff would like to bring it in his state's court the defendant would not like that, therefore it would be taken to federal. If someone is suing for more than $75,000 will be brought to federal. 2/13- in the federal court system the case becomes active when it is filed and then you sever it to the defendant. In many states it is the other way around. What is the purpose of the summons? It lets him that he is being sued, where and when. It is the complaint that does the complaint. The complain isn't written in paragraph form. It is written in onesentence lines. Sets up the basic reason for the suing and it also set up the relief. The defendant will have anywhere from 20 to 60 to respond. If fails to respond then they can have a default judgment for the plaintiff. Assuming that the clock didn't run out is called the answer. The answer is a point-by-point responds tot he complaint. The resonance will take one of three ways. Either admits that it is true, deny, deny knowledge of information (don't know enough to say if it is true or not). You can also have affirmative defense= obligated prove by the defendant. Cross-complain= if the plaintiff sues more than one defendant and one of the defendant sues the other defendant. Third party complaint=plait sues a defendant brings in another party. All of these are the pleadings of the case I) finish part of the lawsuit. Part I gives all sides of the information of the case. Part II is called discovery= find as much info on the other side as possible. You only have to disclose information that the other side asked for. There are different ways to do this part. Very often the first way: request for production of documents. You need to be specific. Why would you want document first? You want to know what they have so you can ask them about what they have. Then do a depositution or an examination before trial= what goes on is very much like what happens during trial but without judge so there are no rulings. If there is a problem during this point you answer and during the court you ask the judge and he will make a decision at that point that will work retroactivity. Looking to lock them into a story, so they can't tell a different story in court. Third discoveries are interrogatories= written question that you send to the other side. Downloaded from: BLW2021GreNotes2.pdf Page 2 of 6 BLW 2021 Legal & Ethical Env. Business Professor Greenberg Spring 2003 Notes You loose the chance to get the defendant on the spot, and the lawyer can filter the answer. Why would you do it? Out of state and don't want to travel, if you are looking for information that they might not have at there hands on the meeting. You can usually not use both interrogatories and depositution. One other discovery technique= is a physical exam. *2nd test* 2/25-Lidigation cost a lot of money. And its time consuming. Your time isn't your own. The court runs your time. The client always pays Court cost. Court proceeding is public. Therefore there was been a movement to ADR. There are about 15 different ways of ADR. The three big ones are Negotiations or settlement, what is it really. It is when the two sides either on their own or throw their lawyers and they settle it outside of court. The lawyers may not be able to bring in all the emotions that the client will be able to bring in. what will it take to get the negotiation work, compromise from both sides. Leverage determines how much each side has to compromise. You have to negotiate in good faith. Mediation: they need people skills and communication skills. You have to be able to step back and not take sides. He tries to bring the two sides together. Mediation can't bind the resolution. Brings in a third party perspective to the situation. Arbitration is binding the rules of evident are followed as closely as in a trial. It is more narrative form than this back and forth stuff in a court. The arbitrator doesn't have to be a lawyer but usually is. The idea of stari desise doesn't hold in arbitration. 2nd Test 2/27-chapter 5 talks about the Internet and you need to read it on your own and it will be on the exam. Ch 6 starts to deal with the constitution. Contract based arbitration and judicial based abrasion. Can parties be force to go to ADR? In some courts yes it depends on the system that you are working with. If you don't like the ruling and you can go back to court because you are forced to go to it in judicial based abrasion. You may not be happy with his answer but you might see that you will need up worst off if you went to litigation. You can also do the other things also. The courts like this because it is less work for from in the court system. We don't have that in New York but it does exist in California. Contract based arbitration, parties can agree to arbitration before or after the complaint is given. GET ELK'S NOTES article 1 section 8 tells congress what powers it has it contains which power exactly what they can do. The very first power a1s8c1 is the taxing and spending power. They can collect the money and then decided how to spend it. Why is it the taxing and spend power the first thing they are giving? On one level it could go back to what England did and they are giving the power to the congress instead of giving it to the pres., which looks more like a king. The article of confederation, which was the first type of gov't in you US. It didn't work because the federal gov't couldn't collect the tax only ask the for taxes. And the feds had no way to pay the army and build a big army. That is why it is number one. Why don't the people have to power to sue congress for what decision they made? Because we gave them to power and if we don't like it either don't reelect them or lobby and because each person doesn't hold standing. You have to show your unique, you can do it as a class but you need the permission of the court to bring in a class action lawsuit. Standing is a gate keep technique- it is a way to keeping out courts that they don't want to listen to. Other gate keeping things are: ripeness: refers to the idea that a court will not get involved until their is a real problem between parties. Moot ness: there might have been a good question but Downloaded from: BLW2021GreNotes2.pdf Page 3 of 6 BLW 2021 Legal & Ethical Env. Business Professor Greenberg Spring 2003 Notes it is no longer there and we aren't interested in it. Exgustion of administrative remedies: before you can go to court you have to go through the administrative remedies, all levels, and then you would go to court systems. - Get note form Elk. A farmer had an idea that he will grow extra wheat and not going to give it to anyone that supreme court said no way. Heart of Atlanta hotel vs. US (1567), congress passed a law called the civil rights act. Isn't discrimination already talked about in the Constitution? The equal protection clause, if the constitution has that clause why does congress have to come around and restate it? The constitution are dressed to the gov't, there is nothing that stops private citizens from discrimination. Only the gov't can't take away your rights of freedom. In the heart of Atlanta hotel and black wanted to come and rent a room and they said no. The discrimination was under the interstate commerce so it doesn't have anything to do with me. They made the Affectation directive: give congress the power over intrastate commerce also; if this is true there are a lot of things they can do. And not a lot to stop them. What is the ability of the state to regulate commerce? Police power: power to the state and the ability pass laws to help the safety, health and welfare of people that live in the state. A lot of times the intrastate will have an interstate effect? The state isn't allowed to openly discriminate against over states. A state can't pass law that will unduly burden interstate commerce. Bibb v. Navajo freight lines: one the Midwestern state required a curtain type of mud flaps it is was to try to keep the trucks off the road. The Supreme Court said no, this is a case of unduly burden interstate commerce. On the other hand, if the law said that you have to have mud flap, no double trailer, that will be a case of health, safety welfare so that will go ok. A 1 S 8 C8: pattern and copy write promote science and useful art, inventor and discoveries, author and writes clause: authors and writes, don't go with science. It talks about exclusive right, isn't that a monopoly? It doesn't matter because it only gives the a limited amount of time that they are allowed to have this monopoly. The monopoly is the incentive to do/make something. Major league baseball is the only legal monopoly. Utilities also sometimes work on monopolies. Copy writes covers writings life of the author plus 70 yrs. Patten is for inventions for 20 yrs. Trademarks can be redone and might be for life, each one last ten years. 3/6-A1S8C18: necessary and proper clause. Also known as the elastic clause. It gives congress the right to do what needs to be done to do the first 17 powers. One of the best example is there they set up administrative agencies. Congress doesn't have to manpower to up hold all the law, so they have other groups do it for them. A4S1: full faith and credit clause. That other states should accept things from another state. A4S2: when you go to other state you have to follow those rules. In a real legal contents with judgment. It also works when you travel to other countries. A5: goes thought the process of amending the constitution. Before 1809 you can amend whatever besides A1S9C1 or A1S9C4 can't be changed before 1808. What is in them? 1.9.1 says this is one of the times when in talk s about slavery up until at least 1808. 1.9.4. says no changes to the 3/5 compromise. article 6: supremacy clause. Selective Incorporation: refers to fed. level and state level. which is different then gov't v. private. bill of rights was set up for congress and not the states. not until the 14th amendment do you have in state something about protection from the states actions. it says that a state can't do things w/o due process. if you take a look at the 5 amendment addresses the fed doing things against you w/o due process. why is it repeated? yes there Downloaded from: BLW2021GreNotes2.pdf Page 4 of 6 BLW 2021 Legal & Ethical Env. Business Professor Greenberg Spring 2003 Notes is a reason because due process in the 14 amendment means a lot more than in the 5 amendment. this is selective corpitation. there are a handful that have not been selectively corporate that exist on the fed but not he state; like a grand jury. the grant jury indites people. it is not a conclusion that the defendant is guilty. it doesn't exist on the state level. certain states do have laws for having grand juries. 3/13- in the context of the commerce clause , the Supreme Court has said but there are limits to it. one case US v. Morrison: congress passed a statue saying that it created a federal right for women that have been raped, supreme court said no it is to far away from commerce and congress can't do stuff with it. obsenitities: if the average person Appling contemporary standards and it community standards. the work taken as a whole prurient ideal. and if it goes against the state laws. whether to work taken as a whole it has to lack literary and visual values. it is extremely difficult to get this done. partially protected speech: the basic type of speech that is partially protect is offensive : porn and hate speech. communication decency act, which was shot down by the Supreme Court. commercial speech: refers to advertisement, as a general thing commercial speech was far less protected then regular speech. bates v. state bar of anoz. gave the lawyers the rights to advertises for people. following this and a couple other to protection of commercial speech are ore protected. 3/25- chapter 8 pg. 223 to the end. the forth amendment along with 5678 for criminal law. 4th is search and seizure. police have to get a warrant b/f searching a place. where do you get it? a judge or a magistrate. the police have to demonstrate probably cause for thinking that you will find something there. you can't use a search warrant to "fish" around. if they needed a warrant and did found something, it isn't allowed. Wong Sun v. US "fruit of the poisonous tree" there are exemptions to rule: Plan view, anything that is in plan view the police don't need a warrant for. Connect, if you give connect they can search, you can only give it for your place. if the police and doing a lawful assets they have the first to search the person and the area within that person's control without getting a warrant. 3/27- the fifth adement: self-incrimination. first part of the Miranda warning. at which point do they have to give you Miranda warning? as soon as you under go custodial interrogation. which is when you don't feel free to get up and leave. you can only claim the fifth only for yourself. grand jury: after the indictment, during the arrandment to which you put in a plea three ways no contest, guilt and innocent. res judicata, collter setoccipl: like double jeopardy. taking clause: refers to the govn't right to imminent domain: they have the right to take property for public use as long as the govn't pay just compensation. 4/1- chapter 8 223- to the end ch 9 244-247. 6th amendment= 4 important things in this one. Right to a speedy and public trial. the speed part isn't talking about the trial itself, but the stuff that is between time he is arrested and the trial beginning. that has to go on in a speedy manner. the trial can last as long as needed. why do we have public trials? It helps to contribute to the fairness of the trial. b/c in England the trials were done in closed doors that are why they wanted it to be open. if there is a case dealing with the minor, that court can be closed. Or a case of National security that can be in closed doors. Conflation clause= if someone has something against the defendant, they have to appear in court. therefore they can be cross-examined and prove that they aren't lying. Subpoena clause= the defendant has the ability to come into court and testify. defendant right to a Downloaded from: BLW2021GreNotes2.pdf Page 5 of 6 BLW 2021 Legal & Ethical Env. Business Professor Greenberg Spring 2003 Notes lawyer. 8th Amendment, bail and death penalty. cruel and unusual punishment isn't allowed. the death penalty isn't cruel and unusual as an idea. all it says about bail the defendant has the right not to have excessive bail. 3rd Test Crimial law, three type, felony, mistrmener, putty crime. must criminal crime are state level. crimes against the person crimes against property and white collar. Burgury have to equal all things= have to break into the place and you have to enter something at night into a dwelling place has to belong to someone else. with intent to do a felony there in. felony murder- comet a felony and in the process you kill someone. actus reus=the act of pulling the trigger. means rayu=state of mind. need both to commit a crime and have to be done at the sometime. 5/8- exam start with the end of ch 6, deal with equal protection and due process. Ch 7 adim. Agency. What do they do, different types, different types of rules they can follow. And different ways that they make the rules. Know where the rules are found. Enforcement and judging cases. ALJ, appealing them and thing like that. Ch 7 end piece of listing different rules they have to follow. Don't need to know the chart. In ch 8, deals with criminal law, different types of crimes, defencesive that can be raised. Blue and white collar crime. Don't go through these ch and see what we didn't talk about in class, you need still need to read all of it, we still need to know it. Ch 9 talks about Torts in that ch there is a famous trial pg 259 Paulgraph v LIR. Ch 10 strict liability. [email protected] not need the know case on pg 244-7, it was on the last exam. On Tuesday prof. will be here. Downloaded from: BLW2021GreNotes2.pdf Page 6 of 6 ...
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This note was uploaded on 04/17/2008 for the course BUISINESS 2021 taught by Professor Greenberg during the Spring '08 term at Yeshiva.

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