Business Law Notes - Google Docs - Hs* differencebetweena union andan independent labor?ggThankyou QUESTION:,howdocourtssettleit

Business Law Notes - Google Docs - Hs* differencebetweena...

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Unformatted text preview: Hs ************Would anyone mind explaining the difference between a ​ union​ and an ​ independent labor​ ? ggThank you! I’m not prepared for this…You got it don’t stress! There is a section for any questions we may have at the very bottom! QUESTION: if a contract involves good and services, how do courts settle it? ^By goods and services, are you talking about Section II of UCC? Isn’t this just over chapters 6­10? I could have sworn he said units 6­10 during the review session Is anyone rereading the chapters to study? I feel like they are really lengthy and will take up a lot of time. What is everyone doing to study? We should all not read the chapters so if he asks questions from that material we’ll end up with a bigger curve =D ^^Affirmed. I heard its not worth it to read ^ Good, because I’m not rereading all that crap. same Didn’t read it in the first place ­ quizlet was enough Just want to double check, we don’t get any notes? Nope! Chapter 1 ● Differences between statutes and common law. ○ Common Law: law developed over time by court decisions ○ Statutory Law: written laws, usually enacted by a legislative body ● Statutes created by congress ○ Also referred to as federal statutes ○ Usually enacted with the approval of the president ● Common law, law created by court of opinion ● Civil action lawsuits: (plaintiff vs. defendant) ○ Civil laws cover rights and duties among private people and companies ● Criminal action lawsuit: ○ Criminal laws allows for the government to impose fines, imprisonment, and occasionally the death penalty. ● Identify the kinds of cases that go to ​ federal court ○ Cases that involve federal law/question ○ Involves people from different states & worth at least $75,000 ○ Any case involving a constitutional question ­ federal subject jurisdiction ● Court systems: (Imagine a pyramid with three layers) ○ At the bottom of the pyramid are ​ Trial Courts ­ ​ here, lawyers file pleading, select juries, and place witnesses on the stand for examination. Here, judges rule on motions and objections, give juries instructions, and enter judgements. Juries listen to evidence, deliberate, and return verdicts. (These are called district courts in the federal system) ○ In the middle of the pyramid are ​ Appellate Courts ­ ​ if parties to a lawsuit are dissatisfied with how a trial court handled a case, they can take an appeal. A panel of judges do not look over the case, but rather they review the case for errors. (these are called U.S. Courts of Appeal or circuit courts in the federal system) ○ At the top of the pyramid are ​ Supreme Courts ­ ​ if the party is unhappy with the intermediate court’s decision they can ask a supreme court to give a final review to the case. There is no automatic right to this last appeal. A part must ask for a writ of certiorari to proceed. (writ of certiorari ­ order from a higher court to a lower court to deliver its records in a case so that a higher court ​ may​ review it) ● Discovery Process (paperwork phase of the trial) ○ Stretch of months in between ○ Lawyers have a lot of utilities to investigate and get a lot of evidence ● Identify differences between challenges for cause & preempting challenges with regard to jury removal ○ challenge for cause ­ i have cause to think they won’t be impartial a request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror. ○ Premptory Challenge ■ The right to challenge a juror without assigning, or being required to assign, a reason for the challenge. ■ Can’t be based on race ● Subject­matter Jurisdiction ○ Court’s authority to hear a case relating to certain subject matter ○ Example: Bankruptcy courts only have authority to hear bankruptcy cases ● Personal Jurisdiction ○ Court’s authority over the parties involved in the case ○ Focused on the defendant ○ Can often be waived ● In Rem Jurisdiction ○ Refers to the power of a court over an item of real or personal property ■ Possessions, land, marriage, etc. ○ Based on location of the property ● Forum Non Conveniens ○ A court’s power to dismiss a case when another court is better suited to hear it Chapter 2 ● Pleadings:​ a pretrial event where a complaint is filed by a plaintiff which amounts to a list of allegations. They must submit factual statements with proven evidence. (defendants receive copy of complaint) ○ Defendants have these options: ■ File a motion to dismiss ■ File an answer ■ Do nothing (Default Judgement) ● Motions to dismiss​ will be granted if the court decides that even when all the presented evidence is proven, there will still be no legal basis for a recovery by the plaintiff ● When ​ filing an answer​ , a defendant admits or denies each item in the plaintiff’s complaint. ○ The defendant sometimes also raises defenses that may be asserted at trial ● Default judgement​ will be given if defendant fails to respond ○ This results in the defendant admitting to each item on the plaintiff’s complaints ○ The defendant loses without having a chance to make a defense in court ● Discovery:​ (second pre­trial phase begins) lawyers on both sides obtain information relevant to the case. ○ Tools used by attorneys: depositions, interrogations, and requests for documents ○ Depositions​ allow attorneys to question witnesses under oath before a trial begins. ○ Interrogatories​ allow lawyers to demand answers to written questions ○ Failure to comply with requests for information can result in the case being dismissed ● Trial:​ when cases have not been dismissed, dropped or settled, it will commence. ● ○ Jury Selection:​ lawyers ask questions during ​ Voir Dire​ to eliminate anyone not fair or impartial. ■ A potential juror may be dismissed during voir dire if…. A) an attorney uses a peremptory challenge or a strike against the juror, or B) a judge excuses a person by granting a challenge for cause made by one of the attorneys ○ presentation of evidence​ : when trial begins, both lawyers get a chance to make opening statements. ■ Plaintiffs have burden of proof in trials by presenting evidence. Ex: ■ documents, eyewitnesses… ● They must demonstrate that their claims are true with proof ■ In Civil Lawsuits, burden of proof lies on plaintiffs to prove case by preponderance of evidence. ■ As long as at least 51% of jury is convinced that a plaintiff's allegations are true then they have met their burden of proof. ■ Defendants do not necessarily need to prove anything, if plaintiff fails then judge can grant defendants motion for directed verdict. ○ once both sides have presented their evidence, both lawyers will make closing statements, jury will begin deliberations. If they fail to reach a verdict then case must be presented to new jury. ○ Losing party may appeal to a higher court. ● Post Trial­ Appeals and Enforcement of Judgements: ○ Appellants:​ parties who make an appeal or petition; the opposing party is Appellee/ respondent ○ In an appeal, a panel of judges reviews the case for any legal errors ○ If appellate court does finds a mistake they can reverse a decision. When reversed, appellate court will send it back down to original to fix it. ● Distinguish between lawsuit ​ reversed​ and ​ remanded ​ (Identify when case is reversed, or remanded.) ○ Reversed: when a higher court finds a significant mistake made by lower court ­ r​ ight but what do they do about it ! like if the verdict was not guilty and it is reversed does that mean it is now a guilty verdict ? ​ If it is purely reversed, and not remanded, then I assume the verdict is overturned. The verdicts are only overturned when the lower court made very obvious and significant errors. If they were not obvious or significant, then they are reversed and remanded. ○ Remanded: Sent back down to do something all over again. ○ Soldano vs. O’Daniel, case was reversed & remanded ● Enforcement of Judgements: ○ a writ of execution can be useful. At this point, Sheriff may seize defendant’s property and auction it in order to raise owed money. ○ A writ of garnishment orders third parties (a bank, for example) to send money or property to a court ● Alternative Dispute Resolution (ADR): ​ (it’s an alternative method of settling disputes) ○ Negotiated Settlement:​ when both parties communicate and agree on a settlement ○ Arbitration:​ when two parties sign a contract that gives one or more arbitrator the power to resolve a dispute. (can be signed after dispute arises) (typically faster and less expensive than a trial) ○ Mediation:​ they cannot decide cases, but they often act as a neutral person in a dispute to help two sides settle a case. (the best ones have good people skills and an understanding of the law) ○ Summary Jury Trial​ : in short, it is a practice trial run, everything follows accordingly (select jury,present evidence etc…) when verdict returns, one side quickly sees it’s vulnerabilities. ○ Minitrial:​ executives view presentation evidence and begin settlement negotiations. (sometimes they can see what a future trial would be like) ● Source of law (key concept 6) ○ old english laws adopted by American courts. ○ Judges follow the doctrine of Stare Decisis however most legal ideas today come from previous statutes. ○ The only statutes voided are the ones that violate part of the constitution or vague. ● Adversarial Judicial System ○ Tend to put more cost in the private sector (requires that lawyers do the majority of the investigation and research (This is the system that we use in the U.S.A.) ● Inquisitorial System ○ Tends to put more costs in the public sector (requires much more out of the judges and, therefore, costs more for the public sector ● Statutory Interpretation (Key concept 7) ○ courts are required to engage in the process of statutory interpretation in the way the judges think that the legislature would have wanted it applied. ○ Ejusdem Generis​ and ​ Expression Unius est exclusion alterius​ are grammar rules used to interpret legislative intent from the words of the statute.9 Chapter 3 Part one: Constitution law The Constitution breaks federal power into three pieces: 1. The Legislative branch includes the Congress, which has the authority to create new laws. 2. The Executive branch includes the President, who has the authority to enforce the laws in existence. 3. The Judicial branch includes the Supreme Court, which interprets laws. Laws are often anything but clear, and the courts must decide what laws mean and what situations they apply to. ● Three types of provisions: ­ Prescribes basic organization of federal government into legislative, executive, and judicial branches ­ Delineates authority of federal government by granting specific powers to the three branches of federal government ­ Protects certain basic rights of individuals and businesses by placing limitations on fed. And state gov. power Separation of Powers: ● Checks and Balances: ○ The President can veto statutes proposed by congress ○ The Senate can block federal court nominations ○ judicial review implies that courts have final say in law Powers of Federal and State Government​ ​ (Key Concept 2) ● The federal government has those powers that are specifically given to it in the constitution are known as the Delegated (or enumerated) powers. ○ Power to regulate bankruptcies ○ Power to coin money ○ Power to regulate commerce ● Powers not granted to the federal government continue to reside with the states are known as the reserved powers. (10th amendment) ○ Ex: lay and collect taxes, dues, defense and general welfare of the US, borrow money on the credit of the US, regulate commerce with foreign nations, establish uniform rule of naturalization, coin money…. State Police Power: ● Virtually all powers of a particular state derive from the state police power, referring to the inherent government power to regulate health, safety, morality… The Commerce Clause (Key Concept 3) ● Individual states may also pass laws to regulate commerce activities as long as they don’t conflict with the following doctrines: ○ Federal Preemption: ■ Federal law preempts state law, even when laws conflict ○ Express Preemption (Derived from Supremacy Clause) ■ If Congress exercises its authority expressly to preempt state regulation, no state can adopt a law that is essentially the same as the law provided by Congress. ○ Discrimination against interstate commerce ○ Unduly burdening interstate commerce ■ States cannot pass laws that create roadblocks in interstate commerce Constitutional Liberties (Key Concept 4) ● The Constitution guarantees fundamental rights that may not be abridged. ○ Privileges and Immunities​ ­ prevention of discrimination against citizens who live out of state in various ways ○ Free Speech​ ­ right to criticize government and express opinions ■ Covers actual speaking as well as symbolic expression ■ Applies to individuals and most businesses and organizations ○ Equal Protection ​ ­ extended to anyone living in the government’s jurisdiction ■ When the law covers areas of social and economic regulation, the government may only convince a court that there is a rational basis for the law ■ When the law makes distinctions based on race, national origin, or fundamental rights, the courts apply strict scrutiny. (If interested in this subject matter, try looking for cases that involve discrete and insular minorities and how they are highly scrutinized in a court of law) ○ Due Process ​ ­ ■ Substantive due process ­ notion that the content of laws must be at least minimally fair ■ Procedural due process ­ requires that the gov takes certain steps before taking life, liberty, or property ○ Taking Clause ​ ­ the government can take your land for a public purpose, even if you don’t want it to, but with fair compensation (also known as eminent domain) ■ Doesn’t have to be land !!! ­­ it can be trade secrets and other intangible Elements of a Crime (Key Concept 5) In criminal law, must demonstrate the following beyond a reasonable doubt in order to win a conviction: 1. A defendant’s actions violated a criminal statute 2. The defendant committed the illegal acts beyond a reasonable doubt 3. The defendant intended to violate the law ● White Collar Crime​ : nonviolent corporate acts ● Insider Trading​ : ​ if insiders or others with similar duties have information about a company that is not available to the public, then they must either disclose it or abstain from trading that company's shares until the information does become public. (Punishable by the SEC) Gonzales v Raich ● California authorizes use of Marijuana for medicinal purposes ● does power vested in congress by Commerce Clause include power to prohibit local cultivation and use of marijuana in compliance with Cali law? ● respondents Raich and Monson are Cali residents who suffer from diseases ○ they rely on locally grown cannabis but after federal agents raided Monson’s house, they destroy plants. ○ respondents sue us attorney General Gonzales ● case law firmly establishes congress’ power to regulate purely local activities that are economic ● ninth circuits decision is vacated and remanded State regulation of commerce ● State regulation of commerce: states retain substantial authority to regulate commercial activities, power permits to protect health, safety and general welfare of citizens, unless dictated international commerce is included within interstate commerce ● Federal preemption: general principle of constitutional law that applies to any state federal conflict, when constitution gives federal government a certain type of authority and state attempts to exercise a similar or related power, courts have to determine whether there is federal preemption ● Express preemption: one basic proposition: The supremacy clause found in article 6 section 1 of the Constitution makes federal laws the supreme law of the land. When using power to pass legislation congress can engage in express preemption by specifying in the legislation that the states have no power to adopt similar laws ● Implied preemption: when Congress sisters and we're doing some activity but has said nothing about whether states do or do not have the power to pass regulated laws. First it must be shown that the federal regulation is relatively comprehensive. Second must be shown that there's a strong need for uniform national regulatory policy in this area ● Directed conflict: just because state law is more stringent than a similar federal law does not make the state law void, State laws void because of direct conflict in only two situations: first is when a direct conflict is nearly impossible to comply with both state and federal laws. Second even if it is literally possible to come by with both lost there nevertheless is a direct conflict with the state law substantially interferes with the purpose of the federal law ● Discrimination against interstate commerce: such discrimination interferes with primary Authority of Congress over interstate and foreign commerce, they cannot require the business operations that could be conducting more officially else were to take place within the state, Chapter 4 Law of tort: Tort : ​ A wrongful act. ● Negligence Torts​ ­ defendant carelessly caused harm to plaintiff. must: ● Have duty of care THEN ● breach a duty of care. ● Have proximate cause ● Can only receive compensatory damages, but not punitive damages ○ Only for intentional things can you get punitive damages ● Intentional Torts ­ deliberate harm ● explicitly defined ● much more expensive ● Types of Damages. ● Compensatory damages ­ pay for bills. standard awards ● Punitive Damages ­ punishing charges for what they have done. usually involved in intentional tort cases. ● Duty of Care ­ everyone is owed a duty of care. ○ sometimes owed more or less. ○ just be a reasonable person, damn ● Proximate Causation and injury requirement ○ Negligence ■ need to be a foreseeable avoidable thing. ■ need to suffer an identifiable injury ● Defenses in Negligence Cases ○ can claim that plaintiff is somewhat at fault. ○ also statute of limitations stuff. ● Intentional Torts ­ Assault and Battery ○ Battery ­ harmful or offensive bodily contact. ○ Assault ­ made reasonably afraid that they are about to be battered. ­ imminent ­ future threat do not count ○ Defenses ­ self defense, statute of limitations ● Negligence Per Se ­ automatic negligence if law broken ○ A doctrine that states that someone necessarily negligent if they broke a certain statute, such as a speed limit, and then an accident occurred, such as a wreck. (Court will assume that the defendant was acting negligently simply because they broke the law) ● Intentional Torts ­ Defamation ○ Deliberately made false statement that harms someone’s reputation ○ Slander ­ spoken defamation about a person. ■ plaintiff must be able to show something beyond mere embarrassment ○ Libel ­ written defamation. no need to show special damages. ■ Special rules for famous folk ● Intentional Torts ­ False Imprisonment, Trespass, and Nuisance ○ False imprisonment ­ can't confine someone without jurisdiction ○ Trespass ­ knowingly entering another person’s property without permission. Results in direct injury or loss ○ Nuisance ­ excessive noise, odor, etc. ● Intentional Torts ­ invasion of privacy ○ can't overzealously monitor employees. (intrusion) ○ can’t use someone’s image in advertisements w/o permission (appropriation) ● Intentional Torts ­ Intentional Infliction of emotional distress. ○ Intentional conduct that results in extreme emotional distress ○ Plaintiff doesn’t necessarily need to be hospitalized ○ Can be a true statement !!!! ● Intentional Interference with a business relationship ○ when firm intentionally attempts to entice a customer to break an existing contract with another firm. ● Related Statutes ­ State deceptive trade practices acts and the Lanham Act ○ State statutes, known as Deceptive T...
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