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BLAW Notes for Test 1

by: Sean Hallisey

BLAW Notes for Test 1 BLAW 2361

Marketplace > Texas State University > BLAW 2361 > BLAW Notes for Test 1
Sean Hallisey
Texas State

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Chapters 1-10
Business Law/Legal Environment
Jon D Bible
business, BLAW310 BusinessLaw
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This 9 page Bundle was uploaded by Sean Hallisey on Tuesday September 27, 2016. The Bundle belongs to BLAW 2361 at Texas State University taught by Jon D Bible in Fall 2015. Since its upload, it has received 2 views.

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Date Created: 09/27/16
Exam 1 over chapters 1,2,5,6,8,10 CH1 CH2 CH3 Ch5 Ch6 Ch8 Ch10 Aug 24 th1. Review syllabus 2. Law v. ethics, morality Wednesday: • Text Preface, Ch. 1: Sources of law (constitutional, federal, state) – where the law comes from. Natural v. positive law Natural law focuses on moral right and wrong. Positive law focuses on what the law says, what is written down is the law. Legal realism – The outcome of a case will come down to who has the most influence, bias, resources in their favor. Also people involved less in a crime might be pursued because of their resources. (smarter move) Civil and criminal law How to analyze a case Kuehn v. Pub Zone Biker gang in pub attacks customer. Bar owner sued. Jury ruled he was at fault. Judge say it was unforeseeable. Soldano v. O’Daniels Good Samaritan denied phone use by a bar owner across the street from a bar where the guy that wanted to use the phone’s dad was in a dangerous bar fight. Best argument presented in the case said that any business that is operating during their hours should be liable or at least obligated to protect their customers, or at least get out of the way for the free phone call. • American Legal System (Resources) • Case Problem #1 – Read, download, bring with you Ch. 2 (on your own): • Why be ethical? • Utilitarian ethics Decisions are meant to make everyone happy, minimize pain • Deontological ethics Reasons for decisions are more important than what happens as a result. • Rawlsian justice – justice for poor circumstance through opportunity • Front page test – picturing what you’re about to do on the front page of a newspaper. • Moral universalism- The belief that acts are either always right or always wrong • Conflict of interest – things that present bias in situations. (Doctor with pharmaceutical company pen) • Euphemisms, reframing – using accurate terminology instead of trying to rationalize actions. • Kantian evasion- don’t lie just use selective truths • Corp. Social responsibility – organization’s obligation to contribute positively to the world around it. th Aug 26 Chapter 1 1. Sources of law: • Constitutional (protects rights and limits law making powers of federal and state.) Federal (administrative laws) State (independent laws, but still follow constitution)(Texas can refuse gay customers Colorado can’t) • Statutory (Written law) (pecking order as follows) a. Federal (Congress) b. State (Texas legislature) c. Local (City ordinances) • Administrative agencies (rules and regulations are law until ruled otherwise through checks and balances)  Federal A. Equal Employment Opportunity Commission [EEOC](title 7) Title 7 includes (race, color, religion, national origin, gender, age)(not sexual orientation state/local law) B. Department of Labor [DOL](minimum wage, overtime, fair wages) C. National Labor Relations Board [NLRB](allows workers to form unions and band together for wage incs)  State A. Workforce Commission [TWC]  Local • Common law (state) • Executive order – can override statutory laws and even enact new ones (situational) Text v. judicial interpretations - The written words of the law vs. how judges view them. Actual/constructive notice – people are assumed to know laws as long as they are available to see ~(contracts) Legal positivism and natural law – Unlike legal realism, operates under the acceptance that decisions stand regardless of morality. (Morals) Legal realism The fact that courts don’t simply operate off of right and wrong and will make court decisions based on the most benefit to them not what is right. 2. Soldano v. O'Daniels (terms in context) • Deep-pocket (legal realism) going after the bar with money over the men who actually killed his dad. • Duty and foreseeability argued that he should have foreseen how his actions would affect the situation and recognize his duty as a Good Samaritan. Duty of foreseeability: If it’s not something that is reasonably foreseeable you’re not liable. • Texas Good Samaritan law Texas doesn’t have one. (Law like this holds people to duty of foreseeability) • Prospective, retrospective application of decisions seeing the effects of a new precedent and considering the application of old precedence now. • Precedent and stare decisis argued that ruling against bartender would leave a precedent that would affect people’s right to privacy. 3. Case Problem 1 (key terms) Civil or criminal case (civil) • Distinction - (could have been both with fraud) • Possible overlap - The civil and criminal pursuit for fraud • Constitutional “double jeopardy” Fraud being tried in both criminal and civil courts is legal since separate. Terms • Cause of action – suit on promissory note • General, limited partnership General= liable for everything Limited= only responsible for your share or inv • Plaintiff and defendant • Counterclaim – D v. P • Crossclaim – D v. D • Appellant and appellee • Liable/liability v. guilt – being responsible for something versus actual wrong doing or guilt. • Due diligence • Demand letter – part of making your evidence to sue when they refuse to pay. • Joint and several liability • Judgment-proof • Indemnify – indemnification agreement – mutual agreement to paying back any damages that occur. Monday: Guest Speaker – Mr. Bruce Howard (Career Services) Wednesday: Ch. 1 cont’d. Chapter 2 Chapter 3 • Contract “choice of law” clause • Contract “forum selection” clause 3. Case Problem 1 Civil and criminal law • Civil: Smith v. Jones • Criminal: United States (U. S. Attorneys) or State of Texas (District, County Attorneys) v. Bible (defendant) Guilt (v. liability) Bible wasn’t really guilty, however he was liable. • Possible overlap (suing government) • “Double jeopardy” (in the same court) • 5A Constitution (1791): "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb" (double jeopardy) Criminal and civil cases Federal and state cases Terms in Case Problem 1 • Cause of action – suit on promissory note • General, limited partnership • Plaintiff and defendant • Counterclaim – D v. P • Crossclaim – D v. D • Appellant and appellee • Liable/liability v. guilt • Due diligence • Demand letter – Formal letter that demanded payment for notes before they went to court. • Joint and several liability • Judgment-proof Statute of limitations -- suit must be filed within specified time of when cause of action accrues or is time-barred Examples: • Professional malpractice -- 2 years • Fraud -- 4 years • Defamation -- 1 year • Product liability -- 2 years • Personal injury -- 2 years • Breach of contract -- 4 years • Suit on promissory note -- 4 years • Title VII, 1964 Civil Rights Act (protected classes: race, sex, color, national origin, religion); Age Discrimination in Employment Act of 1967; Americans with Disabilities Act – 300 days to file complaint with EEOC or 180 days to file with TWC • Discovery rule – equitable tolling Assume: Meeting with Jo and Glen – 3/15/84 "Limited partnership" signed – 4/4/84 Fraud discovered – 11/30/88 Exhaustion of administrative remedies Who controls litigation? • Criminal U. S. Attorney (federal) District, county attorneys (state) Defendant: Pro se representation or via attorney • Civil: Pro se or via attorney. Might charge retainer -- charge by hour, flat rate, contingency fee, or other Pro se: representing yourself in court. th Sept 9 Chapter 1 cont’d. Civil and criminal law • Distinction civil law is mostly for disputes about property disputes, debt, liability, accidental injury. Criminal law is carried out by the Federal, State, or local courts for breaking of criminal laws. Ex murder, speeding, fraud, rape Overlap can be tried by both civil and criminal courts. Some crimes are classified as both initially like fraud and battery. Battery is offensive contact, contact without consent, or causes injury. Case Problem 1 Double jeopardy can’t be tried for the same crime twice (in the same type of court). • Who controls Plaintiff, defendant accuser, accused United States Attorney and/or District Attorney (plaintiff in a criminal cases) • Who Pays? General American rule- everyone pays their own legal fees regardless of outcome unless otherwise stated. Fee-shifting agreement (part of settlement or conditions of win that transfers legal fees) agreed on Discrimination cases (If you win the other party pays) Frivolous litigation (no reasonable reason to pursue legal action) - the law was clear, pay others legal fees. • Burden of proof (have to be able to prove it) • Remedies (court orders for action or restriction, money/other equity) Damages 1. Compensatory (make-whole relief) - pay for everything. Pay anything you have or might in the future cost the winning party. 2. Punitive- meant to deter others from doing the same thing. Pay excessive amount on account of (tort) or intentional wrong doing when the situation is usually negligence. Make them an example. No excessive punishment under the 14 amendment. Must have close ratio of compensatory to punitive ratio to previous cases in similar cases. 3. Nominal – win but doesn’t warrant a big payout. (entitled to $1) 4. Liquidated – in the event of litigation winner entitled to blank Injunction- court order from case that might restrict certain activities or behaviors Specific performance court order to do specific performance • Hiring lawyer (specialties, payment type, area, respect) Factors (different lawyers have different specialties) (don’t hire a chiropractor to do brain surgery) Hourly fee, Retainer – payment up front (like a pre-paid cell phone) contingency – percent of damages Statute of limitations • Malpractice (negligence) – 2 • Fraud – 4 • Defamation – 1 • Product liability – 2 • Personal injury – 2 • Breach of contract – 4 • Promissory note – 4 • Title VII, ADEA, ADA 300 days – EEOC 180 days – TWC 90 days from “right to sue” letter Assume: • Meeting with Jo and Glen – March 15, 1984 • Partnership agreement signed – April 24, 1984 • Fraud discovered – November 30, 1988 Chapter 3 • Contract “choice of law” clause (In contracts) Choose what state laws are applicable in a trial. • Contract “forum selection” clause (in contracts) Choose what state a party can take to trial in. Chapter 5 • Supremacy Clause – Clause that makes all government shit the law of the land. • Judicial review • Incorporation doctrine- incorporated that parts of one system be incorporated with others working as checks and balances. • First Amendment • Fifth Amendment “taking” • Fifth, Fourteen Amendment due process of law 5 this due process 14 tis equal protection. • Fourteenth Amendment equal protection of the laws Chapter 6: • Alternative Dispute Resolution • Judge Judy • Litigation process Sept 14 thQuiz #1 Exhaustion of administrative remedies Chapter 5 • Article I, section 8 powers – ability to regulate interstate commerce. (title 7) Dual federalism (judicial activism vs. restraint) (original intent vs. evolving document) Judicial activism v. restraint – (Activism – finds was to make/change laws) Restraint– tries to keep the same • Original intent v. evolving document (original intent – what it meant when written. Evolving document – today’s interpretation of it • 1st Amendment • 14th Amendment Chapter 6: Alternative Dispute Resolution • Mediation no power to award things or order things • Arbitration (Judge Judy) Power to award things/actions up till certain restrictions. Cost Time Publicity Finality More workable outcome No jury • Judge Judy Litigation process A. Court systems 1. Federal • District (trial) courts • Appellate – 11 judicial circuits + District of Columbia (Texas in Fifth Circuit) • U. S. Supreme Court 2. State (order of importance) • Trial Justice of Peace ($10,000 limit) County court County court at law District Court • 14 appellate courts • Texas Supreme Court (civil appeals) • thxas Court of Criminal Appeals (criminal appeals) Sept 6 hiring a lawyer  Student attorney  Lawyer Referral Service  State Bar of Texas    Google Jurisdiction 1. In personam- minimum contact with a state to establish jurisdiction.  Defendant citizens (domicile citizen of that particular state(corporations can be a citizen of a state when they need to be classified as one, domiciliaries)  Corporations o State of incorporation o Principal place of business  Long-arm jurisdiction  ***Internet – passive v. active website Active websites have monetary transactions and contracts (In personam jurisdiction says that when you do business with another state it is enough to establish jurisdiction and the business entity can be sued in that state). 2. Federal court  Federal question or  Diversity of citizenship o Citizenship of individual o Citizenship of corporation 3. Venue - permissible counties in which to sue 4. Standing – plaintiff must have direct stake in dispute (The case must be directly related to you) Pleading Stage a. Litigation hold – Duty to preserve documents if notified litigation contemplated (cannot dispose of any documents, text, email, etc. that relate to case after you have been notified that you will be sued, tried, etc.) b. Complaint {Example page 148} (shotgun- suing many defendants to try to make sure you get some sort of win. [Better odds], kitchen sink pleading- Accusing a defendant or claiming as many charges/accusations that might be true. Ex rapist rape, battery, assault, sexual assault, molestation, etc.) c. Service of process –process that must be followed in which people are notified of their legal accusations, court orders, tickets, etc (responding to legal issues in a timely manner or facing fines, penalties, etc)  Service of process methods/order below  In person at home  Another adult at home  Workplace  Certified letter  Constructive - by publication d. Answer  Plea to jurisdiction  General or partial denial  Counterclaim(they’re suing us for this, well they did this so I should so them.), crossclaim(why are you suing me and him he did all the illegal shit, aka guilt by association claim)  Affirmative defense Forum selection, choice of law agreement (well I did do these things but I didn’t do that. Accepts some accusations denies some) Motion to dismiss for failure to state claim (atty. fees, costs) Discovery Stage  Interrogatories  Depositions  Request for production of documents o Social media o E-discovery o Attorney work-product  Opportunity for delaying motions Possible summary judgment motion after discovery Trial Stage 1. Jury selection - Voir dire(on case prob )  For-cause challenge  Peremptory challenge (not race)  Consultants 2. Rules of Evidence  Hearsay – quoting people that aren’t in court. (talking shit behind peoples back)  Relevance – has to pertain to present case. (Of course this dude stole that shit, look he’s even killed a guy.)  Opinion – can only be asked or told when they are an expert. (doctors and shit)  Leading questions - 3. Order of presentation Verdict  Motion for directed verdict  Motion for judgment NOV Appeal Collecting judgment for damages  Judgment-proof defendant  Statutorily judgment-proof (state) o Single person – Homestead, $30,000 assets o Married – Homestead, $60,000 assets  Bankruptcy  Hiding assets  Taking assets in another's name  Wage garnishment – paying back through portions of paychecks  Abstract of judgment – 10-year rule – being able to take your shit within ten years after being labeled judgement proof.  P can file judgment in various counties to affect D's credit September 21 Discovery Stage (various forms in book) – asking for various documents or evidence to discover the evidence held by the other side. Knowing what relevant evidence is present in the case and may be used in trial. (Sometimes used as a tool to make life harder for the other side, used to make opposition spend more time on the matter.) Depositions: forced to answer a multitude of questions in court, often statements are picked apart for consistency in your story and your behavior (nervousness, etc) to use for their case and question the reliability of the answers. (Scene in wolf of Wall Street where everyone says they don’t recall. Is a deposition) they use this to decide what witnesses to use in court. Trial Stage Jury selection: Lawyers picking jurors that would probably side with them. If they don’t want you the lawyers must cite a reason to kick you off. (Bias, knowing a person involved, being involved in similar case) Cannot judge based on race. Often done but with different reason for dismissal. Only have certain amount of jury challenges before exhausting them. Lawyers pick for their reasons. Example: lawyers want a sympathetic jurors tend to pick women. Ex: Want an older crowd when dealing with a more complex business dealing in order for them to understand them. Ex: not to old on account for their traditional since of justice or old fashion close minded standpoints. Rules of Evidence- what is object able. On grounds of what? • Hearsay asking for what someone said while that person isn’t in the courtroom. (Objection: Hearsay your honor, the party is not present. Judge Judy would say get out of here if that’s your case.) • Relevance Question must be relevant to the case. Murder Example: is it true you have been convicted of murder in the past? (Does not relate to present case) • Opinion - cannot be asked about personal opinion unless they are an expert on the subject. (Ex: it was clear he was drunk he smelled like alcohol, this is an opinion unless you are an expert on drunk people.) (he could have bad balance (stumbling), he could have a speech impediment (slurred words) • Leading questions: Leading a witness to a certain point through subtle subject changes in questioning. Order of presentation Verdict • Motion for directed verdict: reason for changing the verdict of a case based on a variable that would seem to have clear bias on anyone. (Little old lady winning case because of sympathy) • Motion for judgment NOV Appeal Collecting judgment for damages – report assets to court. Pay judgements based on what you have. • Judgment-proof defendant - Defendant does not have any assets. • Statutorily judgment-proof (state) Entitled to not be stripped of certain assets in a lot of cases. Prevents person from going completely broke. (IRS will take wtv they want) Single person – Homestead, $30,000 assets Amount you can cite as almost a minimum assets to keep. Married – Homestead, $60,000 assets same but for married people. You can spend a shit ton of money on things that aren’t assets to keep the money away from judgement. • Bankruptcy (using bankruptcy to avoid paying judgement) Clean slate idea, although not that easy. • Hiding assets (offshore bank accounts and shit like that) Illegal, but sometimes hard to prove. • Taking assets in another's name – putting things in another person’s name is legit. People who know they might get sued a lot will put assets in other people’s name. If you put everything in someone else’s name you can theoretically claim that your judgement proof. • Wage garnishment – an option in some states (not Texas) that allows for judgement to be paid from a portion of the party’s paychecks. • Abstract of judgment – 10-year rule – (must be done beforehand) If a defendant gets assets after being seen as judgement proof they can be pursued for the previous judgement as long as there is good evidence can be taken to court to collect previous judgement. • Lien when you try to buy something, it shows judgement that you didn’t pay. Almost like bad credit, shows a reason not to lend to you.


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