Mid Term Review - Business Law - Mid Term Review Business...

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Unformatted text preview: Mid Term Review – Business Law 1 50 Minutes 44 Questions Chapter 1 • • • • • • • • • • • • • • • • • Any law (local, state, or federal) in conflict with the U.S. constitution, if challenged, will be declared unconstitutional and will not be enforced. The 10th Amendment to the Constitution reserves in the states all power not granted to the federal government. All states have own constitution which is the supreme law as far as its state law is concerned. King’s Courts sought to establish a uniform set of customs for England. This set of uniform duties/rules/customs came to be known as common law. Common law was a body of rules that applied throughout England. Common law spread to all British colonies including the U.S. and continues to develop from the decisions of the Courts today. COURTS OF LAW – Award Legal damages o Called “king’s courts”: judges appointed by the king. o Awarded wronged parties money, property, or other valuable compensation for injuries or other loses. COURTS OF EQUITY – Award Equitable Relief o Administered by chancellors appointed by the king. o Provides relief when “no adequate remedy of law” Precedent – a decision that is used as authority for deciding subsequent cases involving the same or similar issues. Precedent may be controlling/binding or persuasive o Controlling./binding – Decisions made by higher courts in same jurisdiction o Persuasive – Decisions made by higher courts in other jurisdictions. When There is No Precedent. o In cases of “first impression” where there is not precedent, the court may refer to the following to craft new precedent – § Positive law (constitution, Statutes, etc…) § Public policy § Widely held social values U.S. Constitution – supreme law of land Federal Statue State Statue Common Law (i.e. case law precedent). Societal Values and Public Policy if no government authority (e.g. ethics) Chapter 2 • The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch. • • • • • • • • • • • • • • • • Necessary part of the checks and balances that characterize our federal government. Jurisdiction: “Juris” (law) “diction” (to speak) is the power of a court to hear a dispute and to “speak the law” with regard to a controversy and render a decision that is legally binding on the parties to the dispute. The amount in controversy is greater than $75,000. Lawsuit is between o Foreign country and citizens of one or more states, or o Citizens of a states and citizens of a foreign country. A party must have suffered a legal injury and have a sufficient “stake” in the controversy. o Whether standing exists, in turn, will depend in part on whether there is a justiciable controversy – that is, a real and substantial controversy, not one that is moot, hypothetical, or academic Trials are very expensive and sometimes take many months to resolve Alternative dispute resolution (ADR) methods are usually less expensive, relatively quick and leave more control with the parties involved. Dispute resolution utilizing a neutral third party or panel chosen by court, agreed to by parties May contracts include an arbitration clause o Provides that any dispute arising out the control will be submitted to arbitration, rather than to a court. Complaint states – Plaintiff claim/theory for relief. Plaintiff’s basis for court’s jurisdiction over subject matter and Plaintiff. Plaintiff’s version of facts Plaintiff’s position regarding legal authority entitling relief. Plaintiff’s prayer: Court relief. Once the plaintiff has filed her complaint or petition, she must have each defendant served with process o Copy of the complaint and a summons from the court informing each defendant of his obligation to answer or otherwise appear within a specified time and if fail to do so risk default. o Due Process requires notice to all parties and an opportunity to be heard. Chapter 3 • • If the defendant asserts a counterclaim the plaintiff must file a reply or will be defaulted on counterclaim. o Upon counterclaim being filed o Plaintiff is Plaintiff in original suit and counter-­‐defendant in counterclaim o Defendant Dispositive motion where court many grant only if no material disputed facts – question of law only. • • • • • • • • The movant and respondent typically support their motion for summary judgment and reply in opposition, respectively, by attaching one or more affidavits, copies of relevant documents revealed through discovery, and excerpts from depositions taken during “discovery”. Discovery is the process by which parties obtain information from the opposing party prior to trial o Admissions: Written requests to admit truth of facts related to case. o Deposition: Questioning an Potential witness of the opposing party before trial to obtain relevant info. o Other forms include Requests for production, interrogatories, and physical/mental exams. Direct Examination by counsel for the party who called the witness. Cross-­‐Examination by counsel for the opposing party. Re-­‐Direct and Re-­‐cross: More of the same, typically limited in scope to issues raised by opposing counsel’s questioning. A party may appeal a verdict based on any legal issue, motion/court ruling before or during trial. Appellant must have legitimate grounds for appeal (i.e. legal error). Either party may appeal judgment if colorable basis for exists (e.g. “winning party” may challenge judicial cap on award of damages imposed by the trial judge). Chapter 4 • • • • • • • • • Supreme Law of the United States Neither Congress, any state, or local government may pass legislation that conflicts with the United States constitution. Regulatory Power of States per the 10tth Amendment o Police Powers to ensure order, safety and morals. National government provides checks and balances among three branches: executive, legislative and judicial o Legislative (congress): Creates laws. o Executive (President/Agencies): Enforce laws. o Judicial (federal Courts): Interprets laws. Afforded highest protection by courts. The First Amendment safeguards from most forms of government regulation of speech, including – o Symbolic speech (expressive conduct, including gestures, movements, and clothing) First Amendment protects certain types of expressive speech. Certain types of speech are not protected by the First Amendment: o Slander/Libel o Obscenity o Fighting Words Requires that any procedures relating to a government decisions to take life, liberty, or property must be made fairly o Must afforded prior notice and the opportunity to be heard by an impartial decision maker. o Procedure must be fair and equitable Chapter 5 • • • • • • • • • • • Ethics is the study of right and wrong behavior; wither an action is fair, right or just Ethics is the application of moral principles and values to social behavior Business Ethics: Moral principles and values applied to situations that arise in a business setting. In business, ethical decisions are the application of moral and ethical principles to the marketplace and workplace. Why is Business Ethics Important? o Directions and Officers owe a complex set of ethical duties to their stakeholders. o When these duties conflict, ethical dilemmas arise. o Stakeholders The “Moral Minimum” is normally considered as mere compliance with the law. Religious Ethics Standard o In the Judeo-­‐Christian tradition the 10 commandments establish fundamental rules for morality. ‘focuses on the outcome of the action and not the nature of the action itself ( Utilitarianism) Stakeholder Approach: corporations have a duty not only to shareholders but other groups (stakeholders) affected by corporate actions. o Firms employees, suppliers, creditors, customers, etc. Foreign Corrupt Practices Act. Chapter 6 ASSAULT is an intentional, unexcused act that: o Creates a reasonable apprehension or fear of immediate harmful or offensive contact. o NO CONTACT NECESSARY BATTERY is the completion of the act Our First Amendment freedom of speech we discussed in chapter 4 is not absolute. Law imposes duty to refrain from making false statements of fact about others. Truth is a n affirmative defense to a defamation suit. Fraud is intentional deceit, usually for personal gain. o For fraud to occur more than just puffery (i.e. sales talk) must occur. Wrongful interference with business relationship (business torts) Appropriation – o The use of another person’s name, likeness Conversion Trespass to Land occurs when a person, without permission o Physically enterers onto above the land Trespass to Personal Property vs. Conversion o Both similar. Difference is in the degree of the interference. Conversion involves a higher degree of interference and may entitle the victim to the entire value of the property. Online defamation difficult to combat because: Communications Decency Act of 1996 absolves Internet service providers (“ISPs”) from liability from dissemination • • • • • • • • • • • • • Chapter 7 • • • • • • • • Negligence: Failing to exercise Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known Duty of Professionals o Professionals’ Duties: If an individual has knowledge, skills or expertise superior to that of the ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. o Failure to perform up to the standard of a “reasonable professional” can result in the professional being subject to suit. No Duty to Rescue. o Law requires individuals to act reasonably, but there is not duty to rescue A common and critical element of proximate cause is foreseeability. o If the consequence of the act or omission or if the harm suffered by the act or omission is unforeseeable, no proximate cause exists. o Remember the Palsgraf V. Long Island Railroad Co., for this principle where the Plaintiff’s injuries from fireworks at the train stations were unforeseeable. Defense of Assumption of Risk: A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor o Plaintiff has knowledge of the risk, and voluntarily engages in the act anyway Comparative negligence computes liability of Plaintiff and Defendant and apportions damages. Pure Comparative Negligence States allow Plaintiff to recover even if his/her liability is greater than that of the Defendant. Chapter 8 • • • • • • A trademark is a distinctive mark, slogan or emblem that a manufacturer stamps, prints or otherwise affixes to the goods it products. A trademark identifies a product or service as belonging to a particular company/manufacturer A protected trademark is diluted not only when an identical mark but may also be diluted with the use of a similar mark. This is especially true when a company using the similar mark is in the same or similar business or manufactures the same or similar products. A trade name is used to indicate a business name. o Directly related to a particular business and its goodwill. o Example of trade name is Coca-­‐Cola or McDonalds which sis different than company’s legal name Remedies: o Trademark owner can seek injunction against further infringement o Trademark owner can recover damages, o Trademark owner can recover profits wrongfully received from unauthorized use of trademark. o Court can also order destruction of goods. • • Copyright: The exclusive right of an author to publish, print, or sell a product of her intellect for a certain period of time. The law of trade secrets protects the processes and information that cannot be copyrighted or patented or trademarked that has commercial value. o May include customer lists, plans, research and development, pricing information, marketing methods Chapter 9 • • • • Because criminal culpability carries harsher penalties than civil liability, and because the State has more resources at its disposal in prosecuting a crime than the typical criminal defendant has at her disposal, the State must prove the accused’s guilt beyond a reasonable doubt. By contrast, a civil plaintiff suing the same defendant need only prove the defendant’s civil liability by a preponderance of the evident (meaning only that it is more likely than no that the defendant’s acts) Embezzlement – Fraudulently with money Duress: Unlawful pressure brought to bear on the accused causing her to act in a way that she would not have otherwise acted. A defendant must prove that o (1) she or another was threatened with serious bodily harm or death. o (2) threatened harm was greater than any harm she caused, o (3) the threat was immediate and inescable Chapter 9 • • • Cyber fraud (i.e. online fraud) – Fraud committed over the internet. Cyberterrorists are hackers who, rather than trying to gain attention, strive to remain undetected. The Computer Fraud and Abuse Acts Chapter 10 • • • • Objective Theory of Contracts. o In determining whether a contract has been formed, the element of intent is of prime importance. Contract Vs. Promise – o Contract: An agreement between two or more competent parties, for valuable consideration, to perform or refrain from performing some present or future act. § Offeror: the person proposing an agreement. § Offeree: the person to whom the offeror proposes the agreement. Defenses to Contract Enforceability o Voluntary consent. The consent of both parties must be voluntary. o For example, If a contract was formed as a suit of fraud, undue influence, mistake, or duress, the contract will not be enforceable Voidable contract is an otherwise valid contract that one of the parties may legally avoid, cancel, or annul o Examples are contracts entered into under duress or under false pretenses. • • • o If voidable contract cancelled both/all parties are released. Quasi Contract is A legal fiction that court imposes, in the interest of fairness and justice, on parties who have not formed an enforceable contract. Therefore Quasi Contracts are implied in law. o Provides an equitable remedy Where contract terms are ambigious and/or unclear the ambiguous and or unclear terms will be constructed. Chapter 11 • • • Common statement generally are not offers, including: o Expressions of opinion o Counteroffer: The offereee’s rejection of the original offer, coupled with new offer to offeror. o “Mirror Image” Rule: § Offeree’s acceptance must mtch the offeror’s offer exactly. Lapse of Time. o Offer terminates by law when the period of time specified in the offer has passed. o If no time period for acceptance is speficied, the offer tiermiates at the end of a reasonable period of time Rejection: offeree may reject offer, in which case offer terminates when offeror receives notice of rejection. o Rejection is accomplished by words or conduct evidencing the offeree’s intent no to accept o Offeror must receive rejection prior to any contrary writing or conduct evidencing offeree acceptance. o Note – Acceptance is effective when it is sent by offeree not received by offeror. ...
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