LAW 231 Test 1 Notes
LAW 231 Test 1 Notes 35497 LAW 231 - 002
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This 1 page Bundle was uploaded by Jake Fuemmeler on Friday March 18, 2016. The Bundle belongs to 35497 LAW 231 - 002 at Missouri State University taught by Dr. Wayne Anderson in Spring 2016. Since its upload, it has received 19 views. For similar materials see Legal Environment of Business in Law and Legal Studies at Missouri State University.
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Date Created: 03/18/16
Chapter 1 I. Types of Law You vs. them Lawyers are considered “hired guns" Positive Law: Law created by legal entities (judges, jury, senators, etc.) Goals Protect us Control us Order of structure Common Law->State Constitution->US Constitution Cannot violate US Constitution Common Law: Judge made law Precedent usage Stare Decisis Deciding a case, based oﬀ situations from past cases Not required to follow stare decisis Based on culture and area of law, standard views are uncommon Similar to UK’s common law (From colonial times) Bulk of law usage Generic Law Substantive Law: The do’s and don’t of law Procedural Law: What to do when a law is followed or not Public Law: You vs. government entity Constitution law: You vs. State or Fed govt. Criminal law: You vs. citizens of ___ Tax law Civil law: You vs somebody else or company Private Law: Private property, contracts, agencies II. General Terminology/Processes Restatements Predictions of future law culture Remedies Types of Equitable remedies Speciﬁc Reformance: Settlement for items (land is common) Recession: To leave a contract Reformation: Solve error in a contract Injunction: An order to not do a speciﬁc action Remedies at/in law Suing for money settlement Can be negotiated between parties Juris Prudence Generic term for study of why law exists and what will society do Litigation: To bring a legal action. Plaintiﬀ and defendant are classiﬁed as litigators Plaintiﬀ vs Defendant Plaintiﬀ: Person suing, resembled by π Defendant: Person being sued, resembled by ∆ Maxims Sayings in the law environment Schools of legal thought Positive Law: Laws are commands of society and we should obey them. Natural Law: Laws are commands of society and then just laws that will be followed. Legal Realism: Observing what law spends money on or prioritize more. Historical Law: Snapshot of what society cares about at the moment. Volksgiest (German): People’s view Brieﬁng process Facts Issue Decision Conclusion Opinion Lexis-Nexus Electronic database for law research Chapter Questions: 1-3: Stare Decisis Use of precedence made for consistency and ease for processing. Some states follow diﬀerent things. Chapter 4 III. Ethics in Business Varies across diﬀerent areas Diﬀerence between right and wrong Venn Diagram between Proﬁt-Legality-Ethcial Overlap on all three is when a business should complete a decision Practically, proﬁt holds biggest value to most businesses Triple bottom line Proﬁt People Planet IV. Theories of Ethics Egoism: Is it good for me? Not concerning self with cost/beneﬁt of others Comparative Worth Example: Equal Pay Law - Everybody who does same work should be paid same In application it is disputed Utilitarianism: Is the majority of people beneﬁted? Pure thought is majority of ALL people Limited thought is majority of SOME people Teleology: The end justiﬁes the means Kantian Ethics (Deontology) Unrealistic but utopian Beneﬁts everyone Categorical Imperative: What if everyone did this? Is this the correct way? Judeo-Christian Ethics Religion plays a role in upbringing of ethics Epistemology: Study of how we learn things Categories Revelation: Those around you teach you Observation: Notice what those around oneself do; peer pressure Example: Using tax loopholes that other corporations are using unethically because it would damage competition Reason: Common sense, intuition. Socratic Method: What oneself thinks of ethics as being questioned of a situation Pluralism: A vast assortment of diﬀerent frames of references Chapter 14 V. Intellectual Property Rights Intellectual Property: thoughts and inventions protected by law Allowed temporary monopoly for invention After “life span” the intellectual property becomes public domain Search for infringement is the responsibility of intellectual property owners Forms of federal protection Patent: A process, machine, or product. Must be “new and novel” to be approved of a patent. Race for patent approval, ﬁrst come ﬁrst serve in USA. Useful for 20 years. Public domain afterward. Expensive, complex, and slow approval Slow because a search for other patents to prove if the application is truly unique and new Without search, potential for patent infringement sue “Patent pending” allows for some protection before others get approved Ability to patent software Copyright: Automatic copyright on unique and self-made things. Must be registered to protect or attack from infringement Can register by state OR federally Valuable for owners lifetime + 70 years + 70 for lived family to earn royalties on copyrighted products Fair Use: Slack to copyright infringement. Allowed if it is for education use, if it is limited, if it does not (monetary) hurt the author. Software copyright (code copyright): process to make unique product (patent) Trademarks: Unique symbol, phrase, logo that is associated with a product or company Position in stores, location of company’s products in aisles. Lasts FOREVER (If registration is renewed) Trade Secrets: Privacy in company or product’s uniqueness. Example: Coca-Cola Recipe Violation of Trade Secret: Breaking of conﬁdentiality agreements Software and Hardware Protection Shrink-wrap License: Once the shrink wrap is broken, the product is not returnable Unconscionable: Unfair return policies. The terms of a product, usually violated once the product is opened. Copy Protection: Laws that protect owners of intellectual product from products being shared among consumers without everyone paying. Often within companies, not individuals. Producers used to create virus ﬁlled pirate software. With a right to create archive software allows duplicates of software UCC: Uniform Commercial Code. Dictates how products are to be sold Shop Privilege: If creating a new product, separate from workplace Work could take credit, without giving royalties are money Commercial Software Rental Never returning rental software - piracy Chapter 2 VI. Court System Function Enforce existing law (or) Make new law Attorney’s (Oﬃcers of the court) Function Guide through court system Judicial Review Legislative Executive Judicial: Watch over legality of other branches Jurisdiction: The power a court has to hear and resolve a dispute Moot: Mock court Double Jeopardy: Cannot be tried for the same oﬀense, in the same court system Types State When a case is delicate, a state can handle it, and then be given to federal courts For jurisdiction: Subject matter jurisdiction Making sure in correct court system If civil case-civil court, criminal case-criminal court Territorial jurisdiction In Rem: Something. Real Estate In Personam: Someone. Over a person/company’s actions in the state of citizenship Long Arm Statutes: Drag person from other state into place of jurisdiction Normally against businesses and product liability Quasi in Rem: Somewhat. Going after one owns Being able to handle someone’s real estate to drag them into jurisdiction Venue selection: Convenient place to hold case in reason of situation Example: Sue in town where someone is suing over land in there Federal More experienced judges For jurisdiction Diversity of Citizenship: Diﬀerence in (state) citizenship Must want at least $75,000 settlement Federal Question: Who interprets the constitution better Writ of Certiorari: The decision whether or not to hear a case Rule of 4: Four out of Nine must want to hear the case VII. How a Case Works Pleadings Complaint (π), Answer/Summons (∆), Response (π) Complaint is what happened and what the plaintiﬀ wants Answer/Summons is placing blame and sue on defendant, defendant’s response Response is plaintiﬀ’s answer to how the defendant pleads Winning by believable argument where >51% wins case In Civil court, loser of sue will lose money and possibly assets Winning by beyond reasonable doubt. In criminal court, defendant gets jail, probation, etc. Pre-trialcon Both parties present, scheduling, planning of amount of witnesses, etc. Reading of basic complaint and defense Void Dire Jury Selection, pre-entry challenges, challenges for cause Limited ? for entry Unlimited ? for cause, discovery of bias Defendant can waive right to a jury In federal court, to ask for a jury, you must be asking for $20 On applicable for Federal Questioning Counterclaim Discoveries Request for Emissions Asking for documents, assets, evidence to bring to court Ask for physical/mental exams (If relevant) Formal investigations Asking for facts Interrogatories Questions of those from one party to another Depositions Use of Witnesses & questioning Use of statements in complaint/answer helps refresh or use to discredit witnesses Motions To Dismiss: Demurrer (So what?) Throwing out the case To Summary Judgement Working up the defendant to admission of guilt in mid-court To Judgement on the Pleadings Both parties agreeing on facts, apply law to pleadings without court action To Aﬃrmative Defense Practically admitting guilty but a strong enough defense to become innocent Common in defamation cases Judgement Not Withstanding the Verdict (JNOU) Saying jury verdict is no good, must be up to judge Chapter 3 VIII. Heresy; Alternatives to Settling Disputes ADR/ODR Alternative Dispute Resolution Online Dispute Resolution Arbitration: Contractually, a dispute will be told to an independent third party and they shall justify resolution. Not the easiest or cheapest. Common with businesses Third party decides who wins and settles dispute. American Arbitration Association: Provide arbitrator(s) as a service for contract dispute Have odd number if panel decision Not necessarily an attorney or lawyer, certiﬁcation only Steps to arbitrations Submission: Agreeing if dispute occurs it will go through arbitration Hearing: Meeting on neutral ground to hear both parties narration Award: Must be settled in 30 days. Must completely resolve the issue. Explanation is not necessary, lack of feedback Does not necessarily mean you cannot go to court Acts relevant with arbitration Federal Arbitration Act (FAA); (State) Uniform Arbitration Act (UAA) Federal and State law that says what the arbitrator’s award is cannot be overturned unless illegal action such as fraud Court Annexed Arbitration Forced arbitration, no agreement to meet for arbitration Prompts settlement Negotiation: Both parties work to settlement. No third party but attorneys are possible. Mediation: Independent third party is present and help both parties make a decision. Often used when people cannot negotiation peacefully. Mediator assists with negotiation, keeps parties separate. In settlement cases, often tries to split assets between parties. Summary Jury Trial: Similar to mock/moot court. Parties have council and brief statements. Mini-trial: Both parties with council meet with mock judge (often attorney) Rent-a-Judge: Retired state/federal judges become judge and critique parties’ stories Chapter 5 IX. Constitutional Law Federalism: The relationship between the federal government and other levels of government Enumerated Powers: Powers explicitly given to the government Express Powers: Listed and spelled out, explicit powers given to govern Implied Powers: Laws created from interpretation of express and enumerated powers; given limits to some express powers Supremacy clause: Makes constitution king of law, top of pyramid. Implies federal trumps state law Standing to sue: Bringing an action against the US Constitution Things required: US Citizen & Tax Payer Direct negative impact on one’s self Preempted Areas: Territorial concerns that only federal government deals with Example: Native American Reservations Police Powers States have right to protect citizens Due Process Substantive Procedural Commerce Clause: Most important clause in Constitution concerning business law States cannot interfere with commerce. Interstate vs. Intrastate Interstate: Commerce ﬂowing between other states Intrastate: Commerce ﬂowing only within state Commerce Clause (Fed) vs. Police Powers (State) X. Bill of Rights First Amendment: Freedom of Speech, Religion, Press, Assembly, and Petition Limits on Religion Classiﬁed as "not recognized" Amish needing slow vehicle sign and lights at night. Enforced by Police Powers Limits on Speech Dangerous statements Statements regarding government overthrow Defamation speech Commercial Speech (Advertisement) Press: Can discuss anything (no defamation) Assembly: Ability to form groups; protests Petition: Legal action against government Fourth Amendment: Unreasonable Search and Seizure Reasonable and probable cause is to the digression of the police oﬃcer Fifth Amendment: Self-Incrimination You do not have to confess on actions. Advised to use early Can be pleaded between spouses with unrelated activity Cannot be used when action is brought against one another Due Process Substantive The law itself is constitutional Procedural How to follow law needs to be following the constitution Right to Privacy Chapter 8 XI. International Law Sources of International Law (3) Treaties: Agreements amongst countries In US: Needs president and Senate (2/3 vote) approval Bi-Lateral treaties: Between two nations Multi-Lateral: Multiple nations; UN agreements Customs: Using common sense in law Resolutions and Declarations: Foreign policy statements In US: State of relationship, economic and on terms United Nations International Court of Justice Located in the Netherlands Conﬂict amongst countries are brought to court with a room full of judges Issues Struggles with law enforcement Volunteer to come to court and volunteer to comply to sentencing US has lost to Cuba in the past Doctrines and Acts Act of State Doctrine: Anything within a country's borders complies that it is said country’s business and applied to their law The Doctrine of Sovereign Immunity: Foreign courts do not have jurisdiction in another country’s business Enforces Act of State Doctrine The Foreign Sovereign Immunities Act: Allows foreign jurisdiction if it concerns commerce with their citizens Nulliﬁes Doctrine of Sovereign Immunity for commercial use Foreign Corrupt Practices Act: One cannot bribe foreign oﬃcials in regards to US companies. Anti-bribery act Gives US disadvantage in some business ventures Loophole is use of a consultant to speak with said foreign govt. oﬃcials Comity: Recognizing laws of one country leads to another recognizing the other’s law Cooperation of foreign and domestic courts Joint Ventures vs. Wholly Owned Subsidiary Joint Venture: Working internationally and those in other country operate within business Often not equally distributed proﬁt Wholly Owned Subsidiary: Only one entity owns business operations, internationally as well License/Franchise License: Allowance to use company’s process, rules & regulations, etc. Gives supervision to international branches Franchise: A branch of a company that is identical set up Expensive to franchise. Easy to establish multiple franchises with success. Dumping: When foreign business are selling below normal price Creates domestic competition Example: Ali-express products Conﬁscation v. Expropriation Conﬁscation: The taking of assets, without compensation. Illegal international activity. Expropriation: The taking of assets, with compensation Certiﬁcate of Review: Review if a business venture is legal or not. Claiming a certiﬁcate of review asks a court if the business is legal or illegal. A new, novel international business idea that requires investigation if the entity would be lawful. Attorney general, secretary of commerce can give Certiﬁcate of Review Telling idea to these oﬃcers can lead to possible leak of information With approval, immediate launch business Letter of Credit: A letter that shows that a business is legit and has money. Issued by a major bank Can sometimes have a monetary limit Similar to resume references Choice of Law (For US examples) Law: Using US law Forum: Using US courts Language: Using English Common Law v. Civil Code Law Common Law Most countries do not use common basis No use of precedents from precedents Civil Code Law Laws made with no precedents or interpretation Long list of laws and law is applied to what the Civil Code states Questions wrong on test (37) Golden Rule B. Adopted by most religions (38) Laid oﬀ restrictions B. Harder internationally (39) Employees block the door C. Injuction (50) Interrogatories are with other parties, not witnesses A. International Software
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