BLAW 205 Midterm Study Guide
BLAW 205 Midterm Study Guide BLAW 205
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This 8 page Study Guide was uploaded by Julia Lines on Friday February 26, 2016. The Study Guide belongs to BLAW 205 at College of Charleston taught by Dr. John Martin in Spring 2016. Since its upload, it has received 58 views. For similar materials see Legal Environment of Business in Business at College of Charleston.
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Date Created: 02/26/16
BLAW 205 Midterm Study Guide 25 True/ False questions 10 Multiple choice questions 5 You be the Judge questions (answer yes or no and then support it with a legal principle) Essay (will be given a fact pattern- Is the business ethical? Yes or no. Identify all major schools of ethical thought and their subsets.) Strategies from Skip Read through the test before starting o This helps you to correlate questions that may give you some hints True/False Questions o Look out for the words all, always, never, shall, must, only These words tend to mean that the phrase is false Multiple choice o Cover the answers before you read the question, try to answer it without looking, and then look to see if the answer you thought of is a choice- it is less likely that you won’t second guess yourself o Watch out for the strange duck questions These answers will not look like the others (i.e. 3 out of the 4 answer choices are one word but 1 out of the 4 is three words- the three word answer is probably correct) Sources and Functions of the Law (9 questions) Functions of the Law: 1. Keeping the peace (i.e. criminal laws) 2. Legislating morality (i.e. alcohol sales and use, abortion, etc) 3. Promote social justice (i.e. civil rights act) 4. Orderly change (i.e. laws about how laws become laws, notice/right to be heard for city ordinances) 5. Maintaining the status quo (i.e. when and how elections take place) 6. Planning (i.e. zoning, land use, road works) 7. Promoting compromise and resolution 8. Protect freedoms and rights Sources of the Law: 1. Constitutions 2. Treaties 3. Statutes 4. Administrative orders 5. Executive orders (i.e. Mayors can issue mandatory evacuations) 6. Common law/ Judge Made law (doctrine of precedent- Stare Decisis) 7. Concept of Justice Litigation and the Triangle (10 questions) Constitutional Regulation of Business 1. Federalism a. Delegated powers i. i.e. Federal drinking age b. the US federal government holds power which they can delegate to the state i. i.e. speed limits 2. Separation of Powers/ Checks and Balances a. Legislative branch makes laws, executive branch enforces laws, judicial branch makes sure laws are being enforced fairly- they all balance each other out Constitutional Clauses that Effect Business 1. Supremacy Clause a. Preemption Doctrine b. “Federal law is supreme to inconsistent state law” (i.e. If the city of Charleston wanted to change the legal drinking age to 25- state law would win) 2. Commerce Clause a. Congress is given the power to regulate domestic and foreign commerce Responsibility of the state to regulate health, welfare, safety and morality States can choose to use selective enforcement where they choose to enforce certain types of laws (i.e. Louisiana chooses to not strictly enforce the drinking age) Bill of Rights 1. Freedom of Speech a. Commercial speech is heavily regulated i. Liquor companies cannot advertise on broadcast stations ii. Tobacco companies cannot advertise using fixed place advertising i.e. put on a sign at a baseball game that will be aired on TV b. Political speech is not heavily regulated i. i.e. All presidential candidates are required by law to have equal time on TV networks th 2. 4 Amendment a. Protects citizens from unreasonable searches and seizures b. Essentially, we are no longer protected by this amendment c. The authorities are allowed to search and seize if what they are searching for was in plain view but now the use of helicopters at night with heat detection is considered plain view d. Good Faith Exception i. If a policeman has sufficient probable cause to believe a crime is being committed, they are allowed to search and seize without a warrant ii. The search and seize is allowed to be used as evidence as long as the judge agrees they would have given the officer a warrant at the time of the crime 3. 5 Amendment a. The right to remain silent b. One cannot be compelled to speak to the police- self-incrimination c. Just Compensation i. The government must justly compensate you for taking private property for sidewalks, parks, roads, etc.- real property vs. private property ii. If you own a business and the government takes some land from the property you are located on, they must compensate for interference of business 4. 14 Amendment a. Due Process Clause i. All laws must be non-arbitrary (must go through a legal process) i.e. must be published on an agenda b. Equal Protection Cause i. All people must be treated equally ii. Businesses count- absent a compelling reason not to c. Taxing Authority i. Businesses get tax incentives i.e. $900 million in tax incentives were given to Boeing for building their plant in North Charleston and they don’t have to play tax for 30 years Federal law is enforced by federal judges Presidents appoint the federal judges We have had conservative judges since Eisenhower Administrative and Regulatory Law NO checks and balances 1. Enabling Legislation a. i.e. the EPA (environmental agency) decides what is allowed to be emitted- they enforce the rules and they judicate them b. you MUST be proactive to get anywhere with these agencies Procedural Laws 3 US Supreme Court 2 US Court of Appeals 1 US District Court 1. Level 1 a. Courts of original jurisdiction- power of a court to hear your dispute i. Limited- address limited matters (i.e. Family court deals with child support and divorce) ii. General- everything not in limited jurisdictions This is where your case is tried, where the trial takes place, and where the facts are addressed 2. Level 2 a. Appellate courts- small courts that address law and procedure ONLY, they DO NOT get into the facts 3. Level 3 a. Supreme court- discretionary- can accept or deny- “certiorari deny”- ONLY address law and procedure Alternative Dispute Resolution (2 questions) 1. Arbitration- Issues an award, found in contracts- BINDING a. Single arbitrator (the norm) - another person of significance acts as the judge (i.e. an architect acts as the judge for a building dispute) b. Arbitrator panel (3 arbitrators) – 3 people of significance act as the judge- will usually result in a better verdict 2. Mediation- voluntary- NON BINDING a. Resolve dispute- when two parties agree, it is binding b. Mini trial- a retired judge will run the trial Contracts (17 questions) Bilateral a promise given in Unilateral A promise in exchange exchange for a promise for an act Created by an Express expression of both Implied Created by a behavior parties or an act Fully performed by both Something is yet to be Executed parties Executory performed by someone Must have an All 5 elements are agreement, 1 of the 5 there, plus an Valid consideration, capacity, Void elements is Voidable additional element legality, and mutual missing assent that allows an out Bilateral express and unilateral implied tend to go together 5 Elements of a Valid Contract 1. Agreement- meeting of the minds a. 2 Parts i. Offer- a promise to do something or not to do something that is reasonably definite (who, what, when, where) communicated to an offeree (one person or a defined group of people) made with serious intent *ads are not offers* ii. Acceptance- unconditional; communicated to the offeror by the same or similar (faster) means, avoiding the mailbox rule (a contract is made as soon the letter is sent) 2. Consideration- benefit (value received) and detriment (value given) test 3. Capacity- the people involved must have competency a. The following people lack capacity: i. Minors- contract is VALID only if the minor is married or emancipated but VOIDABLE in any other instance ii. Insane- lacking mental capacity- contracts are VALID unless they have been adjudicated insane or they voluntarily relinquished capacity while still sane iii. Intoxicated- impaired through alcohol or other substances- VALID if they are sober enough to understand what they are doing *typically can only be proven through 3 party evidence* Doctrine of Necessaries- one must pay for reasonable food, clothing, shelter, and healthcare- REGARDLESS of their capacity 4. Legality- subject matter of the contract must be legal (i.e. gambling) *common in licensed professions (i.e. an unlicensed handyman doesn’t fix your AC properly- there isn’t a valid contract, so he is not legally obliged to fix it properly) 5. Mutual assent- parties freely and willingly enter into a contract a. Negate by the following 4 things: i. Fraud- i.e. you were sold a car that had been in a wreck, but you specifically asked for a car that had not been in one ii. Duress- threat used to get you to sign a contract iii. Undo influence- wrongful persuasion- someone is in a special capacity (i.e. a caregiver uses their close relationship with their patient to get them to put them in their will) iv. Mistake- both parties are mistaken over the purpose of the contract (mutual) or one party is mistaken by essential parts of the contract (unilateral) Enforceability- 6 types of contracts that must be in writing in order to be enforceable 1. Paying debts of another 2. Contracts of Administrators of Estates 3. Contracts that take longer than one year to perform 4. Real estate 5. Sale of goods above $X (depends on state) 6. Contracts made in the consideration of marriage (i.e. dowry) How Contracts End 1. Discharged One of 5 Ways a. Performance- contract is executed- both parties fully perform b. Waiver- mutually agree to waive contract c. Accord and satisfaction- waive underlying contract (satisfaction) and enter into a new contract (accord) d. Novation- substitute a party (happens when businesses are bought and sold) Make contracts freely assigned so you don’t have to rewrite contracts e. Operation of Law i. Subsequent Illegality- subject matter becomes illegal- i.e. video poker rentals in SC ii. Impossibility of Performance- i.e. a house under contract gets struck by lightning- the buyers are no longer legally obliged to still purchase the house 2. Breach a. When one party fails to perform, the other party no longer has to perform (i.e. if someone stops paying rent, you no longer have to provide them with the building) Monetary Damages a. Actual- tangible- i.e. towing bill/ car repair bill OR breach of contract by motor company b. Consequential- flows as consequence of the breach- intangible- i.e. pain and suffering (depends on the person) LOSSES MUST BE MIDIGATED Non-Monetary Damages a. Specific performance- one party will ask the judge to make the other party perform b. Injunction of relief- cannot do something by order of the judge Warranties 1. Express- created by a statement of fact or promise *LOOK OUT FOR PUFFING/ESTIMATES- NOT a warranty* 2. Implied a. Merchantability- product is fit to be sold and consumed b. Fitness for a particular purpose- must use product for its intended use i.e. using a light weight suspension truck for heavy weight loads Ethics (2 questions plus essay) 2 Ways of Ethical Thinking: 1. Result Oriented Thinkers/ Teleological Thinkers a. Start at the result and work backwards b. Egoists i. Satisfies self interest ii. Acts morally if it benefits them more c. Utilitarians i. Satisfies a group interest 2. Deontological thinkers a. Act out a sense of duty without regard to result b. Goodwill thinkers i. i.e. boy scouts returning money they found on the street c. Primaficia obligation i. Two duties must be fulfilled but there is conflict between them- you must identify the most important one ii. i.e. In a dangerous situation, do you tell the truth or do you lie in order to prevent harm? Do you attend your daughter’s dance recital or do you go to your son’s soccer game?
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