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BSL Quiz 1

by: Sol Ani Botbol

BSL Quiz 1 BSL 212

Sol Ani Botbol
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Introduction to Business Law
Jonathan Stratton
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This 10 page Study Guide was uploaded by Sol Ani Botbol on Friday September 23, 2016. The Study Guide belongs to BSL 212 at University of Miami taught by Jonathan Stratton in Fall 2016. Since its upload, it has received 45 views.

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Date Created: 09/23/16
BUSINESS LAW 212 What is law? ▯ - An ordering of human activities and relations through the application of social pressure, rules and political organized society. ▯ - The judicial process (the system) ▯ - An accumulation of legal rules including the judicial body (courts) What is law’s purpose? Organize society, keep social control, regulate human conduct, keeps us safe. How is this purpose carried out?- It prohibits- It can also be permissive (you can get married, sell, buy, etc. it allows you to do certain things)- It is mandatory (taxes, driving on the right side of the road) LAW VS MORALSWhen you see a man falling of a cliff and you choose not to help him, you are not breaking the law; however, you are not morally correct.Law and morals are different an overlap exists; for instance murder. It breaks the law and not morally correct LAW VS JUSTICE- Justice refers to a fair impartial treatment- The law is not always just (segregation, OJ Simpson) RIGHTS VS DUTIES ▯ - A right is something you are entitled to with the aid of the law. With aid of law it’s the capacity of a person to require someone else to perform or not perform an act. ▯ - A duty is the obligation the law puts upon you to perform or not perform an act. Classification of Law §▯ Substantive Law: creates, regulate and defines rights and duties.ü▯ Private: governs individuals and corporations (civil law,....)ü▯ Public: government rights and powers (constitutional law, criminal law,...) §▯ Procedural Law: rules for enforcing the rights and duties CIVIL LAW: violation to an individual. When a party is injured, the party sues. PLAINTIFF (pi) sues DEFENDANT (delta). Pi has the burden of proof, in a civil matter, the burden of proof is the preponderance of the evidence meaning that the plaintiff has to have just enough evidence to prove that more likely than not (not very hard to do) they are in the right. The purpose is to compensate injured party. CRIMINAL LAW: violation to whole community. On the criminal side, you have the PROSECUTION (government) vs. DEFENDANT (delta). The burden of proof for a criminal trial is beyond a reasonable doubt (hard to do), there cannot be another reasonable alternative that anything else happened apart from the defendant broke the law. US LEGAL SYSTEM Sources of Lawü▯ US Constitution ▯ - Treaties: agreements between nations (handled by the President, he needs 2/3 of the senate for approval). When a President enters into a treaty, all the states have to abide by it. ▯ - Federal Statutes: formal written enactment by a legislative authority. A state law cannot go against a federal law. ▯ - Federal Administration Law: Laws that govern federal agencies (CIA, FDA, etc.) ▯ - Federal Common Law ▯ - State Constitution ▯ - State Common Law No law, federal or state can violate the constitution. There is a jerarquia Separation of Powers: 3 branches§▯ Judicial: Supreme Court, evaluates the law §▯ Legislative: Congress, creates the law§▯ Executive: President, carries out the law COMMON LAW VS CIVIL LAWCivil law: follows roman laws by creating codes. Common law: relies on judicial system, it is beneficial because it is constantly changing along with all the advances in society. It is based on precedence (they study previous decisions to get to a verdict) and an adversarial system (one person initiating a case against another). More efficient. System of equity: ▯ §▯ Specific performance: a condition or type of behavior that someone or a company is required to take or abide by. If a fence was built on someone’s property without permission, a specific performance would be that he takes down the fence ▯ §▯ Injunction: a hold on something. If the person started to build the fence illegally and an injunction was granted, the person needs to stop building that fence until the case was resolved. ▯ §▯ Reformation: A judge will create a reformation to a contract ONLY if a mutual mistake was made and there is an agreement in both parties. §▯ Recission: occurs when a judge invalidates a contract. (Ex. contracts with minors) Restatements of law: not quite the law, but statements that have been a part of part cases that sometimes come to light to prove a point or make a decision LEGISLATIVE LAWS: apply to everyone; make big changes, education, bankruptcy, etc. COMMERCIAL LAW (governed by UCC) MORAL PHILOSOPHY: principles people use to decide right versus wrong, they are person specific because they are based on personal principles and values Moral Philosophy vs. Business Ethics: business ethics are based on group decisions as opposed to personal decisions. The moral philosophy of a business will depend on the goals and endgame of the business because that will shape their decisions. Theories: ▯ - Economic value orientation theory: the value is quantified by money (dollars). If something a business is doing (chopping trees, kill animals, destroy soil) produces money then it is ethical. ▯ - Idealism: the value is placed in the idea and ideals, general view of the ideal situation and how to create it. It places a higher value compared to reality, it looks at what the world should be. It can be is too expensive or impossible so it needs to be on a spectrum on which it can be accomplished. Example: a paper company, in an ideal world would plant 3 trees for every tree chopped (too expensive). ▯ - Realists: opposed to idealism, it looks at the bigger picture and what can be done in the real world. ▯ - Teleology: it targets the end or the purpose not the means. Their moral philosophy is, if the act produces the desired result, then it is morally acceptable o Goodness: it focuses on the end result, that one pleasure and how to get there. ▯ §▯ Monism: one thing intrinsically good. The believe that that there is one good thing in their life and that is their whole purpose, it is why they are here. ALL MONISM ARE NOT HEDINISM, because hedonisms is all about pleasure and there is a group of monism that believe that that one good intrinsic thing is POWER. ▯ §▯ Hedonism: whatever you do is right as long as it is trying to accomplish that one good thing. The more pleasure you get, the more ethical and right your decisions are. ▯ §▯ Pluralists (non-hedonist): there is not just one good thing. There needs to be a mix of different thing, a balance, have everything in moderation. Theory from Plato. o Egoists: self interest (person/company) §▯ Enlightened egoists: they do help others only to make themselves feel better. o Utilitarianism: they seek the greater good for the greatest amount of people. They basically do a cost-benefit analysis to determine their decisions. §▯ Rule Utilitarianism: they behave based on rule. - Deontology: it focuses on the rights of an individual. Their fundamental belief is “equal rights to all”. There is no sacrifice or the bad means for a greater good for them. If an act is suitable to become a universal principle or a general rule then it is ethical. Ex. The act of borrowing money is unethical since not everyone has the ability to borrow money. o Rule deontology: they behave based on rule.o Act deontology: they look at past actions to take into consideration when judging in a situation. o Obligation theory Relativist perspective: use themselves or others around to create ethical standards or basis. In general, when trying to solve a problem, they look at the group and determine the popular ethical consensus. Ø▯ Descriptive: they focus on cultures; they try to determine the ethical basis or standards within that culture. It does not compare cultures. ▯ Ø▯ Metaethical: they that there should be no preferences. No one preferred over the other ▯ Ø▯ Normative: one person’s opinion is just as good as the others. Virtue Ethics: Plato & Aristotle: They believe that ethics is a character trait; it is built deep down into every person. The person is supposed to bring their character into business decisions (honesty, empathy, responsibility, etc.). Their ultimate purpose is to serve society. It overlaps with idealism (everything is integrated and perfect). Deductive reasoning (Deontology and Teleology): based on facts. I saw Brandon stealing, people who steal are bad; therefore Brandon is bad. Ex ▯ Ø▯ Deontology: if everyone has the right to live, if 4 people are going to die with someone knowing, then that person does not follow deontology. ▯ Ø▯ Teleology: if my endgame is to make money, and killing someone is going to make me money then it is ok. Inductive reasoning (Virtue ethics): based on observation and probability. If 99% of all cats have 4 legs, then all cats have 4 legs. JUSTICE: evaluation of fairness or the power of dealing with perceived injustice. In business, all decisions are based on individuals and the fairness of decisions often can be debatable or questioned. ü▯ Distributive Justice: you evaluate the outcome, what are the results of the business relationship, what is fair and what is not and you look at how work is distributed. EX. If there is a boss and 5 employees below his level, and he does nothing to contribute to the company, there is an imbalance, an distributive injustice. ▯ ü▯ Procedural justice: based on the processes that produce the outcome. EX. If an employee is being paid double compared to the others then this is a procedural injustice because the process now is being questioned and this influences the workers attitude. ▯ ü▯ Interactional justice: you evaluate communications, the relationships between people. EX. If a person fakes an illness every Friday to get off work then that creates distrust between workers, between worker-boss and others. That created and interactional unfairness Application of moral philosophy: business in general has different goals that a singular individual, money and corporate culture are taking into account when making most decisions. With bigger sized companies, it becomes more difficult to impose this moral philosophy compass. Very often, personal moral philosophies conflict with the company’s moral philosophy. WHITE COLLAR CRIMES: corporate crimes, it is a non-violent crime but still a criminal act. It creates victims by establishing a trust and respectability. The victim is someone who believes that that business is legit. It involves deceit, concealment and fraud. Ex. Credit card fraud, insider trading, Ponzi schemes, bribe, etc. Requirements1. Individual or a group (committing the crime).2. Committing an illegal act in relation to employment.3. Highly educated (at least college graduate).4. Position of power, trust, responsibility and respectability. 5. Within the business world. Profit or not profit world.6. Abused the trust associated with that position.7. For personal or group gain. Procedural vs. Substantive LawSubstantive Law: rights and duties of individuals, groups’ corporations Procedural Law: how the rights or duties are asserted. It tries to have a just process, to be fair and efficient. - COURTS: impartial and neutral tribunal established by the government to settle disputes. It has to have jurisdiction over: the parties (plaintiff and defendant) and the matter. Split into ü▯ Federal Courts: disputes over tax, marital law, some environmental issues, bankruptcy, social security, disputes between states. Top Court is called the Supreme Court and the bottom called US district court. o Supreme Court: 12 judges, only need quorum of 6 to hear a case. They first review the previous decisions and then decide if they will take the case or not. Any case that gets to the SC has to pass through the DC of appeals. It gets accepted into the SC by: appeal by right or discretionary writ of ceror (they vote for taking case or not) o District Court of Appeals: there are 3 judges. When there is an appeal one side is unsatisfied. This court can: • Reverse the decision • Modify the decision • Affirms the decision • Remands the decision: sends the case back to the district court (they made some type of error, usually procedural errors) o US District Court: the general trial court of the federal system, one judge. The geographic boundaries of district courts are not evenly distributed between states because of population density. Depends on the amount of people in each state, each is divided into districts. NY has 4 districts. ü▯ State Courts: minor crimes, traffic offenses, etc. o Appeal Court o Trial Court: They keep written recordso Small/inferior Claims: their decisions are not written. No need for an attorney. In Florida it is different, you have: o Supreme Courto District Court of Appealso Circuit Court (equivalent to trial court): bigger matters, family law, felonies, any dispute over $15k, juvenile cases, criminal cases. They keep written records o County Court: takes any small claims and civil matters under 15k dollars WITH ANY APPEAL, YOU MOVE UP TO A BIGGER COURT IT ONLY GOES BACK DOWN UNLESS IT’S REMANDED ANALYZING A CASE: 1. State/look at the facts (story) 2. Indicating the issue: start with the word “WHETHER”. Ex. Whether Paul violated the contract 3. Decision: what the judge decided 4. Reasoning/rationale: why the judge would agree to the plaintiff The judge can only rule on the issue at hand, if he/she ramble on, goes off topic it is called dicta. When the judge is making a decision he needs to follow the rule of law. JURISDICTION: power or authority of the court to hear a case. In order to handle a case there needs to have both types of jurisdiction: o Subject matter jurisdiction: is the authority to judge a certain controversy or issue. There are federal exclusive subject matters and concurrent subject matters (can be shared with the state court, it can apply federal laws but it uses state procedures) o Jurisdiction over the parties (both plaintiff and defendant): the court has automatic jurisdiction over the plaintiff. The court needs to obtain 1 of these types of jurisdiction over the defendant §▯ In personam/personal: to get personal jurisdiction over a process you need to have “serve process” over the party within the state that the case has been filed. If you are able to summon that person, serve him documents that show a complaint/requirement then the court has personal jurisdiction on the case. You can also gain it by reasonable notification through a long-arm statue: o The crime/wrong doing was done within the state OR o The defendant owns property within the state and the property is subject to suit ORo They entered into a contract within the state ORo They transacted biz within state and biz is subject of suit ▯ §▯ In REM: when the lawsuit is directed towards property. The property can be real (land) or personal (car, computer, phone, etc. movable). ▯ §▯ Attachment (quasi in REM): it’s a personal suit in which you go after personal property. Very rare, mainly used to get compensation Venue: where the lawsuit is being brought or heard. If it’s related to real estate its where the real property is. Diversity jurisdiction: case that has greater than 75k dollars. Both parties are from different states or you have a foreign country vs. a US citizen. Or citizens of state vs. citizens of a foreign country. The federal court will handle the case because it is too big for a state court but the federal court will use state laws and procedures. Ex. Plaintiffs from FL and DC vs. Defendants from ND and FL. This does not meet the requirements, you have a plaintiff and a defendant from the same state the case would go to FL court. Ex. Accident in Georgia. Where is this suit going to occur?Pi: FLDelta: NCIt would be filed in NC because why should the defendant go to the trouble of doing everything in FL. The plaintiff has to make it as easy as possible for the defendant to defend himself or herself. It sues in NC but under GA law Conflict Laws: not all states have the same laws Stare decisis: precedent (previous decisions). When is the precedent binding?Ø▯ When the Supreme Court makes a decision, it is not binding on the Supreme Court itself so in future cases, they can change their decisions not being bound to previous rulings. ▯ Ø▯ A Supreme Court decision made on a Federal question, IS binding on both the low federal courts and the state courts. ▯ Ø▯ A Federal Court decision on a Federal issue IS NOT binding on a State Court but it is PERSUASIVE on it though they are not bound. ▯ Ø▯ A Federal Court decision is not binding on an equal or lower Federal Court UNLESS IT IS ON THE SAME DISTRICT. ▯ Ø▯ A State Court decision is not binding for Federal Courts. On diversity cases, it can be different. CIVIL PROCEDURE 1. Pleadings: documents that are interchanged between parties. It is where the plaintiff makes his/her claims and where the defense can make their claims too. The issues of law (legal rules that apply to the case, who is technically responsible. Decided by the judge) and issues of facts (the dispute relating to the facts of the case, what happened. The jury decides the issues of facts) are defined. The plaintiff files a complaint with the clerk of court. The complaint has: i. Statement of claim including facts ii. Demand for relief (hospital bills, money, compensation, etc.)The clerk then issues a summons: a document that serves the defendants to notice them of the lawsuit. 20 days to respond (in FL). The defendant can: Ø▯ Abstain from responding to the complaint: then the plaintiff gets a default judgment (practically gives the plaintiff the right to be in the right). ▯ Ø▯ Pre-trial motion: example, the defendant resides on a different county or it should be on a different court so you file a motion. Motion for extension of time ▯ Ø▯ Requesting that the complaint be more explicit and certain: not specific enough ▯ Ø▯ Dismiss: failure to state claim ▯ Ø▯ File an answer: the defendant’s response to complaint, you answer to every point of the complaint. Admission, denial, affirmative defense or counter claim (the plaintiff has to answer in the case of a counter claim). Judgment on pleadings: judgment if there are enough facts on pleadings to make a ruling. Discovery: most important phase of the entire case, phase where you gather all the evidence, all the witness and experts and everything that may be relevant to help your case. No surprises, whatever is going to be presented, needs to be given to the other party as well. This phase helps the parties move towards a settlement. 90% of cases are settled before trial. ▯ - Depositions: sworn questioning (under an oath) where general questions and details of the case are asked by opposing side. ▯ - Production documents: any documentation and/or objects. Exams, tests, relevant evidence, etc. Things will be admitted. Pre trial conference: meeting with the judge and both attorneys, purpose is to simplify issues in the dispute. At this point right before trial either party can file for a summary judgment saying that there are no issues of fact, no way to fight the case. If this doesn’t happen, trial happens. Every person in the US has the right to have a jury trial (the other option is a bench trial, just the judge) Jury selection (Voire Dire): no attorneys allowed. There are 30 jurors and you bring the number down to 8. And you ask questions to every person to determine if they are fit for their case. Each lawyer has an unlimited number of challenges for cause: when a potential juror is bias, have a language barrier, etc., you can be challenged and you take that person out. Each side also gets a limited number of pre-emptory challenges, no cause is needed but it cannot be based on race or gender TRIAL 1. Opening statements: each party gives their roadmap of what they are trying to prove. Plaintiff goes first. 2. Plaintiff brings the direct examinations (ask questions). You can’t ask leading questions. a. Witness 1: Cross-examinations by defendant. Can ask leading questions 3. Plaintiff rests. 4. Defense files for directed verdict: after everything heard, the judge rules. If it rules for the plaintiff then trial continues 5. Defendant does direct examinationsa. Plaintiff does cross-examinations 6. Closing statements: plaintiff goes first then defendant and then plaintiff can go again. 7. The judge speaks to the jury directly to give them the jury instructions (how to treat evidence, explains burden of proof depending on the case) 8. The jury retires to a room 9. They decide the liability (who is responsible) and the amount of money. 10. Motions challenging the verdict (whoever lost): motion for a new trial a. Judge prejudicial errorb. Against weight of evidence c. Excessive damagesd. Unfair trial 11. JNOV (Judgment Not Withstanding the Verdict): similar to a directed verdict but it is done after the jury’s decision. The judge decided that the evidence is so clear against what the jury decided that they are going to go ahead and make a decision against the jury’s decision. If this case is appealed and then reversed meaning it is jury’s decision that stands and it is automatically entered. Not common Appeal: to be able to appeal there needs to be an error of law made by the judge. The person that appeals is called the “Appellant” and the person receiving the appeal is called the “Appellee”. You go to court, no new evidence allowed; you orally argue that error that you are appealing. Results: modified, affirmed, reversed, remanded. Enforcement: enforces a judgmento If you’re not getting paid, you file a writ of execution, which demands the moneyo If they still don’t pay, post a bond to seize the person’s personal property and get the money collected from selling the propertyo Can also do a garnishment of wages: pulling a portion of the person’s salary and send it to the winner§▯ Full faith and credit: can go after someone’s property in any state • Alternative dispute resolutiono Arbitration: if there’s a contract dispute, instead of a trial, the two parties can elect to have a neutral third person (not necessarily a judge) who will make the decision §▯ Binding – can’t appeal it §▯ Less formal§▯ Faster than trial§▯ Cheaper than trial §▯ Arbitrator must be an expertà▯leads to a more focused ruling §▯ Private matter§▯ Format is basically the same as trial§▯ Decision can be reviewed due to: • Impartial/corrupt judge • Award was given because of corruption (getting a kickback) • Some kind of misconduct on either side that produced prejudice • Arbitrator exceeding their power (judgment too harsh) o Mediation§▯ Non-binding decision §▯ Choose a mediator to try and strike a deal rather than go to trial §▯ Required in Florida§▯ Even cheaper§▯ Usually ends up somewhere in the middle Contracts (K): Binding agreement between two or more parties that will be enforced by the courts. Promise or set of promises for which, if there is a breach, the law gives a remedy. Doesn’t have to be written, but oral contracts can lead to he said she said o Primarily governed by state common law (unless it’s under UCC) o If you’re dealing with a federal contract, federal law (duh)o Sale of goods or personal property ▯ §▯ Governed by UCC: Uniform Commercial Code ▯ §▯ Car, bed, TV, ring ▯ §▯ Sale of goods: passing of title/ownership of the good from one person to another for money • Goods: tangible personal property (DOES NOT INCLUDE REAL PROPERTY) Requirements of a K
1. Mutual assent: manifest by word or conduct that the parties agree to enter into a contract §▯ Usually done through an offer and an acceptance2. Consideration: each party has to intentionally exchange a legal benefit or incur a legal detriment as an inducement to the other party to make a return exchange3. Legality: contract will not be valid if it’s for an illegal exchange or purpose 4. Capacity - Can’t be a minor- Can’t be shitfaced or anything like that


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