The legal environment of business and online commerce questions - Essay Example

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Lawyers were esteemed to be the most educated and respected people of the colonies and were therefore amongst the ones chosen to craft the United States Constitution. They wrote the…
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There are 15 questions, - Briefly describe the evolution and historical roots of the American legal system. The evolution and historical roots of law actually began with the lawyers of the colonial era. Lawyers were esteemed to be the most educated and respected people of the colonies and were therefore amongst the ones chosen to craft the United States Constitution. They wrote the acts of Congress as well.
- Answer the following terms:
1. Subject matter jurisdiction – refers to the court having jurisdiction over the subject of litigation. The subject of litigation also means the “res” of the case.
2. Personal jurisdiction (including “minimum contacts”) – refers to the court’s ability to demand the presence of a personal or corporate defendant into the court. This is achieved through a certain amount of contact that the person or corporation might have within that particular jurisdiction (known as minimum contacts) without having residency in the jurisdiction
3. Venue – the particular location of the Court
4. Standing – the ability of a party to institute legal proceedings. In order for a party to have standing to institute legal proceedings, they must have a direct and tangible interest in the case.
- briefly describe the process for a writ of certiorari to the U.S. Supreme Court.and What is it?
A petition for certiorari is made to a superior appellate court, here, the United States Supreme Court which may exercise its discretion in accepting a case for review.
A party, the petitioner, files a petition for certiorari after a judgment has been rendered against him in the inferior court. The petition must specifically state why the relief sought is unavailable in any other court or through any other appellate process, along with information clearly identifying the case and the questions to be reviewed, the relevant provisions of law to be applied, a concise statement of facts relating to the issues, and any other materials required by statute.
- Describe how the voting of the justices on the U.S. Supreme Court determines whether a decision is precedent, or not.
The voting of the justices on the U.S. Supreme Court determines if a case is precedent when there is a strong majority vote. All decisions by the Supreme Court are the supreme law of the land. The majority vote is usually 6-1 or a complete 7 judge vote.
- Compare and contrast federal court vs. state court jurisdiction. What types of cases are in both federal court and state court ?, and in each?
The differences between federal and state courts are defined mainly by jurisdiction which refers to the kinds of cases a court is authorized to hear (remember subject matter jurisdiction).
State courts have sweeping and broad jurisdiction, so the cases individual citizens are most likely to be involved in -- such as criminal acts, traffic violations, violations of contracts, and family issues-- are usually handled in state courts.
The only cases that are the exclusive jurisdiction of the federal courts are lawsuits against the United States and those involving certain specific federal laws: criminal, antitrust, bankruptcy, patent, copyright, and some maritime cases.
Federal jurisdiction, by contrast, is limited to:
Cases in which the United States is a party;
Cases involving violations of the U.S. Constitution or federal laws (under federal-question jurisdiction);
Cases between citizens of different states if the amount in controversy exceeds $75,000 (under diversity jurisdiction); and
Bankruptcy, copyright, patent, and maritime law cases.
In some cases, both federal and state courts have jurisdiction. This allows parties to choose whether to go to state court or to federal court.
- Describe the instances that create “diversity of citizenship” cases.
Diversity of citizenship means that a case involving questions that must be answered according to state laws will be heard in a federal court if the parties on the two sides of the case are from different states.
a. Why was this jurisdictional basis created? To prevent forum shopping.
b. What circumstances would lead you to use it in choosing a forum? If I were suing a big corporation, like TARGET, and their corporate offices were not where I lived.
- In drafting a contract, several clauses can often provide certainty as to what law will control, where the dispute will be decided and the method of dispute resolution. List and describe them. Why are these clauses useful to a business?
These clauses are called forum clauses or choice of forum clauses. The reason why they exist is so that the parties entering into the contract know which law will govern (state v. federal and if state, which state) and also so that there will be no forum shopping in the event there is a conflict in the contract.
- What is the difference between “criminal” and “civil” actions?
Criminal liability
-usually the state prosecuting the defendant
- there is both a mental element and physical element to the offence.
- The burden of proof for criminal offences is that of "beyond reasonable doubt"
- The penalties for criminal offences are fines and imprisonment, as well as other non-custodial punishments.
Civil liability
Civil liability gives the ability to sue for damages for personal injury.
For there to be an award of damages, the injured party has to have
suffered an actual loss, be it personal injury, damage to property, or financial loss.
The burden of proof is "more likely than not" which is much lower than for
criminal matters.
There is no jail time.
- Why is the attorney-client privilege important? What must you do to preserve the privilege (and not waive it)?
It is important because without it, an attorney cannot maintain a strategy to a defense on a case. It is waived when a person speaks to another party in front of their attorney.
- What is the difference between “mediation” and “arbitration”? Are both binding upon the parties?
Mediation is when the parties come together with a trained professional in order to come to a mutually satisfying resolution. – it is not binding.
Arbitration is handled by a former judge or an attorney and it is binding.
- What factors should you consider in determining whether to bring (or defend) a lawsuit (cost-benefit analysis)? At what point(s) should they be considered?
The first factor of course is going to be attorney’s fees and expenses. The second factor is the chance of winning and if there are damages to be incurred. They should be considered from the beginning of the cause of action.
- Why is the Commerce Clause important? What does it authorize the federal government to regulate? When is a state or local law unconstitutional because of it?
The commerce clause allows for the regulation of interstate commerce. A state or local law is deemed unconstitutional when it in any way restricts the federal law or attempts to tighten the scope of the federal laws.
- List and describe the two religion clauses in the First Amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
- Describe the following and provide an example of when it would be used to strike down a law as unconstitutional.
1. Equal Protection Clause – prohibits discrimination by state institutions. An example is that it is illegal to segregate students in schools (state schools)
2. Due Process Clause – requires that a person have notice of a charge against him and the opportunity to be heard. This means that one cannot be thrown in jail without a trial first.
3. Privileges and Immunities Clause – guarantees that the citizens of one state be granted the privileges and immunities of the other states. All states should honor the laws of the other states.
-Define a “tort”, including the parties typically involved, the sorts of claims, and the types of damages awarded.
A tort is when a person sues another person or entity for civil liability for an almost criminal act. This is often seen in medical malpractice, products liability, insurance liability, asbestos cases and toxic torts. Millions of dollars can be gained by the person who wins this type of lawsuit. Read More
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