Glossary of Business Law Chapter 1
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- Explain the significance of the seperation of powers doctrine.
- The seperation of powers doctrine is significant because in theory it keeps the state and federal governments from becoming too powerful.
- Define subject matter jurisdiction.
- The specific types of cases enumerated under Article III of the U.S. Constitution to be decided by the supreme court and lower courts established by congress.
- Define Appellate Jurisdiction.
- The power of the supreme court and other courts of appeal to decide cases that have been tried in a lower court and appealed.
- Define original jurisdiction.
- The power of the U.S. Supreme Court to take cognizance of a case at its inception, try it, and pass judgement upon the law and facts. Distinguished from appellate jurisdiction.
- Define judicial review.
- The power of federal courts to review acts of the legislative and executive branches of government to determine whether they violate the constitution.
- Explain the significance of Marbury vs. Madison.
- Established the precedent of judicial review. The power of judicial review is not explicitly stated in the constitution.
- Define the supremacy clause.
- states that the constitution, laws, and treaties of the United States take precedence over state laws and that judges of the state courts must follow federal law.
- Explain the basis for federal preemption.
- State law is preempted when it directly conflicts with federal law or when Congress has manifested an intention to regulate the entire area without state participation.
- Explain the function of the states' police powers.
- The general power granted state and city governments to protect the health, safety, welfare, or morals of its residents.
- Explain the significance of sovereign immunity.
- Sovereign immunity keeps the citizens of one state from suing the government of another state. The state must voluntarily waive this immunity for someone to be able to sue them.
- Define federalism.
- The doctrine that serves to allocate power between the federal government and the various state governments.
- Define the Bill of Rights.
- The first ten amendments to the constitution.
- Compare and contrast the function of the Fifth Amendment and the Fourteenth Amendment.
- The Fifth Amendment prohibits double jeopardy and compulsory self-incrimination. It also states that due process is required before taking life, liberty or property. It requires just compensation for the taking of private property, and states that presentment or indictment of a grand jury is required for capital or otherwise infamous crime.
The fourteenth amendment guarantees that state governments cannot deprive any person of life, liberty, or property, without due process of law, and that states may not abridge the priviledges or immunities of citizens of the United States. The fifth amendmend protects citizens from the federal government, and the fourteenth protects citizens from state governments.
- Briefly discuss the evolution of the Commerce Clause and discuss the significance of the clause to business.
- The commerce clause states that Congress has the power to regulate commerce with other nations, with Indian tribes, and between states. Over time it came to mean that Congress could regulate all activities having interstate impact.
- Explain the significance of the dormant or negative commerce clause.
- When Congress has not acted on particular areas of interstate commerce, the clause is still in effect and any laws that contradict the constitution are invalid.
- What is the First Amendment?
- It guarantees the freedom of speech, the freedom of the press, and the right to assembly and petition. It also contains the establishment clause and the free exercise clause.
- What is the Second amendment?
- It guarantees the right to keep and bear arms.
- What is the Third amendment?
- It states that soldiers shall not be quartered in citizen's homes.
- What is the Fourth amendment?
- It states that no unreasonable search and seizure and the requirements for warrants.
- What is contained in the Fifth Amendment?
- Presentment or indictment of a grand jury is required for capital or otherwise infamous crimes. Prohibits double jeopardy. Prohibits compulsory self-incrimination. Due process is required before taking life, liberty, or property. Just compensation is required for the taking of private property.
- What is contained in the sixth amendment?
- It guarantees the right to a speedy and public trial, the right to a jury trial, the right to confront witnesses, and the right to counsel.
- What is contained in the seventh amendment?
- It guarantees the right to a jury trial in civil cases.
- What is contained in the eigth amendment?
- No excessive bail, no excessive fines, no cruel and unusual punishment.
- What is contained in amendment nine?
- Rights of the people not limited to those not listed in the constitution.
- What is stated in the tenth amendment?
- Powers not delegated to the United States in the Constitution are reserved to the states or the people, except for those powers prohibited to the states by the constitution, which are reserved to the people.
- Compare and contrast the differences between political speech and commercial speech and provide an example of each.
- Political speech is the most protected form of speech. This includes speech that is critical of governmental policies and officials. Commercial speech is subject to substancial regulation. The government cannot suppress commercial speech, but it can impose reasonable regulations regarding the time, place, and manner of such speech.
- Provide examples of unprotected speech.
- Bribery, perjury, and obscenity.
- Discuss the Due Process clause.
- States that due process is required before the government can take life, liberty, or property.
- Explain how the Fifth Amendment's protection against self-incrimination works.
- This means that no one can be forced to be a witness against themself.
- Explain the equal protection clause.
- states that the government cannot deny to any person within its jurisdiction the equal protection of the laws.
- Compare and contrast procedural due process with substantive due process.
- Procedural due process focuses on the fairness of the legal proceding, while substantive due process focuses on the fundamental rights protected by the Due Process Clauses.
- Explain the standards of review that courts use to determine validity of discrimination.
- 1.applies to all classifications that relate to matters of economics or social welfare.rational basis test- a classification will be held valid if there is any conceivable basis on which the classification might relate to a legitimate governmental interest.
2.a classification that determines who may exercise a fundamental right or a classification based on a suspect trait, such as race, is subject to strict scrutiny.strict scrutiny test- a classification will be held valid only if it is necessary to promote a compelling state interest and is narrowly tailored to achieve that interest.
3. substancially related test- This intermediate test applies to classifications such as gender and legitimacy of birth. Under this test, a classification will be upheld if it is substantially related to an important governmental interest.
- Explain the evolution of the right to privacy.
- the right to privacy is one of the rights that is implied by the other rights, but is not specifically stated.
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