LAW 231 Study guide
LAW 231 Study guide BLAW 231
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This 16 page Study Guide was uploaded by Kathleen Notetaker on Wednesday September 2, 2015. The Study Guide belongs to BLAW 231 at Missouri State University taught by Nancy Allen in Spring 2015. Since its upload, it has received 88 views. For similar materials see LEGAL ENVIRONMENT OF BUSINESS in Business Law at Missouri State University.
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Date Created: 09/02/15
LAW 231 STUDY GUIDE CHAPTER 1 Business and its Legal Environment Compare and contrast commonlaw systems and civil law systems CHAPTER 2 The Court System FED MO USSC l has supreme power only if has a federal question MO supreme Court US Ct app MO ct of app l don t retry the case don t go back to the beginning look at questions of law and procedure not questions of fact Trial Court Trial Court Federal jurisdiction hear cases where there is a federal question or diversity of citizenship o Is the case based on the US constitution o Is the case based on a treaty with the federal government o Is the case based on a federal statute o If the US is a party to the lawsuit then it is automatically a federal question Long arm statute gives court jurisdiction over a nonresident 0 Can exercise jurisdiction based on activities in the state 0 Has to be shown that the defendant had sufficient minimum contact with the state to have that jurisdictions Trial court in MO is called circuit courts argue about the facts who did what to whom Trial court in federal system is the district court USSC can review any case decided by US court of appeals and state supreme courts if involve a federal question but don39t have to if don39t want to Writ of certiorari way to get to USSC order from supreme court saying they will review it may deny and usually do CHAPTER 3 Alternative and Online Dispute Resolution ADR any procedure or device for resolving disputes outside of the traditional jurisdiction process courts 0 Less expensive 0 Less time consuming 0 Private and off the record Negotiation no third party 0 Least formal sometimes without attorneys 0 Parties come together 0 Don39t want independent 3p that makes the decision 0 Hole in apartment dispute w landlord talk it out decide and agree on who pays damages compromise 0 Parties aren39t required to settle like in a court case 0 Don39t need assistance of counsel can rep yourself Mediation 3p mediator 0 Get together with expert 0 Tell sides of the story and expert listens and says heres what I recommend you do 0 Oldest form 0 Suggest purpose solutions for the parties to consider 0 3p doesn39t have the power to force parties to do anything can only recommend Cant do sanctions court deadlines cant stop the mediation for contempt behavior 0 Advantages faster cheaper less hostile environment Arbitration 3p arbitrator 0 People arb because they agreed to Contract 0 Settling of a dispute by impartial third party 0 Differences are the third party decision is legally binding 0 Decision of the arbitrator is as legally binding as a judge39s decision in a court of law Parties agreed to arbitrate have to do it o Arb process Submission complaint form ids parties disputes about the money involved and parties are bound by arbs award Hearing mini trial call witnesses cross examination offer evidence closing argument Award arb issues an award his decision on who wins and losses like a jury verdict usually explains why he or she decided the way the that they did 0 Can appeal if misconduct fraud abuse of power CHAPTER 4 Ethics and Business Decision Making SarbannesOxley Act of 2002 0 Federal law that only applies to publicly traded companies 0 Makes the companies require a con dential reporting system so that their employees can anonymously report suspicious behavior 0 Foreign Corrupt Practices Act FCPA o Prohibits US business people from bribing foreign officials from advantageous contracts Penalites federal prison Does allow 500 bribe limit 0 Business ethics and the law moral minimum least you can do from an ethical standpoint Ethical reasoning o Duty based ethics deontology Key factor is how it effects the rights of others 0 What would happen if everyone acted this way Kantian should be respected because we are different than objects endowed with moral integrity 0 Outcome based utilitarianism Focuses on the consequences of an act or preestablished moral values or religious beliefs Something is ethically right if it produces the greatest amount of good for the greatest number of people Care about the majority not the minority CHAPTER 5 Constitutional Law 0 Regulation of commerce is a federal government power that the constitution grants Commerce clause regulation is a federal govts job 0 Heart of ATL Motel vs US Motel in ATL didn39t allow black people in building federal statute prohibits racial discrimination in public facilities Said are intrastate commerce only in this state and not operating across state lines Since effect people out of state because a hotel it is interstate commerce which means the Feds can regulate you 0 First Amendment freedom of speech assemble press religion petition 0 Speech goes beyond written words 0 Symbolic speech is protected like gestures movements clothing and even ag burning Texas v Johnson 1989 0 Government can restrain speech in order to protect others with substantial interests and rights quotdon39t taze me broquot court case 0 Commercial speech has limited protection Communications by businesses Govt can restrict if restriction promotes govt interest and advances the interest and isn39t more restrictive than necessary Bad Frog Brewery v NY State Liquor Board 0 Unprotected speech Defamatory liable and slander false speech that hurts someone39s reputation quotfighting wordsquot threats because they disturb the peace Obscenity obscene or pornographic speech 0 Miller v Californ ia de ned obscenity Equal Protection Clause due process clause of 5th amend govt cant make biased laws 0 Law deprives group of fundamental right so law gets strict scrutiny 0 Law based on suspect trait so law gets strict scrutiny 0 Law based on gender gets intermediate scrutiny 0 Social or economic welfare laws get the rational basis test like a catchall Not as strict o A fundamental right voting privacy interstate travel 1St amendment rights CHAPTER 6 Administrative Law Enabling legislation is the statute that congress passes to create the admin agency congress delegates its power to the agency 0 How congress creates an agency 0 Admin process APA Administrative procedure Act 0 Rulemaking formulation of agency regulations Notice and comment rulemaking rules they follow when making regulations No ce o If agency wants to make a new rule must publish a proposal of the rule in the federal register 0 Says content of the rule and the subject matter 0 Comment period 0 Interested parties can express views about the new rule 0 Agency has to respond in writing to all comments 0 Publish nal rule in federal register with the CFR code of federal regs D contains all rules and regs created by an agency 0 Administrative Law Judge ALj Presides over the hearing make the nal decision but isn39t a real judge because not part of the judicial branch D employee of the agency DEFERENCE CHAPTER 7 Criminal Law and Cyber Crimes Major differences between torts and crimes 0 Crimes a wrong de ned by a perpetrated against society 0 Tort violation of civil law 0 Sanctions incarceration execution payment of ne to government 0 Objectives Civil payback and compensation Criminal protection of persons and property Deterrence by enforcing the criminal law 0 Speci c cannot commit crime when locked in a cell 0 General people hear that someone was punished for it Punishment want something bad to happen to someone that does something bad 0 Burden of Proof Civil preponderance of evidence Criminal beyond a reasonable doubt Types of crimes 0 Violent crimes robbery taking another person s property with force or intimidation 0 Property crimes Burglary unlawful entry into a building with an intent to commit a crime Larceny sneaky doesn39t involve force or fear Forgery faking a signature 0 Public order crimes Public drunkenness gambling prostitution Victimless but viewed as detrimental to society as a whole 0 White collar crimes Embezzlement Bribery Theft of trade secrets 0 Organizaed crimes markets for illegal goods and services Porn drugs human traf cking credit card scams gambling Laundering buying a business to hide illegal business 0 DOUBLE JEOPARDY AS IT APPLIES TO TORTS AND CRIMES CHAPTER 8 International Law FCPA under chapter 4 notes CHAPTER 9 Contract Formation 0 Agreement 4 essential elements of every contract 0 Offer Offers into the agreement must be accepted by the other pa y Parties to the contract are the offeror makes offer and the offeree must accept Is a promise to do some speci ed thing in the future 0 For it to be effective Offeror s intent must seriously intend to do this Determined by what the reasonable person would think the words and actions meant 0 Lucy v Zeemer Lucy wanted to by Zeemer s farm go out to dinner and get drunk and lucy says I bet you wouldn t sell me your farm he says he will Execute written contract sign it Zeemer says he was kidding and was a joke Made it to Virginia Supreme Court determined that it was a serious offer and so Lucy got the farm Advertisements are NOT offers 0 Viewed as an invitation to negotiate Terms have to be reasonably de nite and certain Has to have reasonably de nite terms 0 The identity of the parties the identity of the subject matter the consideration to be paid and the time of performance 0 Sometimes one of the terms will be missing courts can apply a missing term Must be communicated 0 Acceptance voluntary act by offeree that shows consentagreement to terms of the offer Must be unequivocal Mirror image rule must mirror the terms of the offer Acceptance has new terms stuck in it then it s a counter offer and not an acceptance like make offer on a house counter Offer to sell bike for 100 counter with 90 not a mirror image not an acceptance roles switch from offeror to offeree Cannot accept offer by silence not acceptance and cannot be taken as acceptance Consideration o quotsomething for somethingquot Capac y Value given in return for the promise must be a bargain for exchange Something has to be in it for both parties No contract is enforceable without something of legal value being exchanged the watch 0 Legal ability to enter into a contractual relationship 0 Certain people cannot be bound in contracts Minors someone under 18 in MO 0 if enter in a contract with a 17yro they can choose to carry out with contract or cancel it an intoxicated person 0 if so drunk that lack mental capacity that can t comprehend the consequences of entering a contract then the contract is voidable at will of the drunk judged incompetent by the court given a guardian 0 any contract is void only guardian can contract on their behalf 0 Nancy Allen has alzihemiers neighbor contracts her to rake neighbor s leaves and Nancy forgets so contract is legally void 0 Legality 0 Give Zack 500 to buy crack not legal and unenforceable 0 Has to be legal and cannot be against the law Statute of frauds o lnnocent party has choice of carrying out contract or not when tricked or lied to 0 Mistakes o If have mistakes don t have true meaning of the mind to make a contract o If both parties are mistake to material of the contract 0 Example Nancy sells a ring to Mike thinking it s a real diamond but it isn t so can void the contract because both made the mistake and did not know CHAPTER 10 Contract Performance Breach and Remedies If have a failure to perform a contract get to choose a remedy o Damages most common relief money given to injured party Compensatory Purpose put the party in the position they would have been in if the contract had been performed 0 Sale of goods measure is the difference between contract and the market price at the time of the breach Consequen al Forseeable damages that ow from the consequences of the breach that stem from circumstances outside the contract lost pro t Liquidated Agree when enter contract the set amount that you have to pay IF there s a contract breech o Equitable extraordinary remedies because money won39t x problem Recessionrestitution Cancel a bad contract 0 Parties return money or property included in the contract Speci c performance 0 Court forces other party to perform under contract 0 Only used in unique cases land artwork rare coins Reformation 0 Go to court and rewrite contract CHAPTER 11 Sales Leases and econtracts Article 2 of the UCC uniform commercial code applies to the contracts for the sales of goods and ordinary sales transactions from state to nish UCC special rules for merchants harder on merchants bc have a higher level of commercial expertise o A merchant is car dealership Nancy selling her car is not a merchant because not in the businesshave expertise o Merchant s rm offer lrrevocable offer Most can be revoked but under UCC is a merchant gives assurance in writing and signs then the offer is irrevocable for a state period of time Nancy sells washing machines gives Brad an offer but he has to talk to gf nancy signs name and price but another guy wants to buy it but he cant be wrote offer for Brad for 24hrs o Implied warranty of merchantability Arises automatically 0 OpenMissing terms in K for sale of goods 0 Will not fail for inde niteness if have a missing term Judge will plug in missing term enforce the contract Nancy sells Gabby peaches forget the price in contract so court supplies the price so can enforce the K 0 Price quotAreas price at time of deliveryquot 0 Payment quotTime and place buyer receives goodsquot 0 Delivery quotplace of delivery sellers place of businessquot 0 Quantity Doesn t say how many peaches selling COURT DOES NOT SUPPLY court has no way of knowing how many peaches the other party wants no basis to gure out o Statute of Frauds UCC O O K for sale of goods 500 must be in writing Must be signed and enforced Warranties assurance by one party by which the other party can rely on O O O Guarantee it will work wont chipcrackbreak Breach of warranty is a breach in sellers promise Warranty of title Seller will warrant the goods they sell put their faith in what they are selling Transfer is rightful and l have good title not stolen Express warranty applies to both merchants and non merchants Seller makes a promise about the performance potential of the goods quotHuffingquot is extreme exaggerations and don t create an express warranty 0 Watch is the most fabulous watch on world Implied warranty of merchantability only applies to merchants Goods are t and reasonable for ordinary use In every sale of goods that arises automatically Every time you buy goods they must be merchantable Have to be t and reasonably safe for their use lmplied warranty of tness for a particular purpose Arises when a seller merchantnon seller knows the particular purpose that buyer is gonna use the goods for and knows that the buyer is relying on the sellers knowledge and skills to buy Burma buys old house has original wood oors but they are dirty so go to home depot and ask an employee what should buy buy it and fucks up the oors and ruins them 0 Have a breach of implied warranty bc seller knew the purpose she needed and knew she was relying on their skill CHAPTER 12 Torts and Cyber Torts Tort is French for wrong 0 Law of torts wrongful conduct y one person that causes injury to another Tort feasor person who commits the tort inted the act but an evil motive doesn39t have to be shown CHAPTER 13 Strict Liability and Product Liability Uh oh CHAPTER 14 Intellectual Property Copyrights protect authoers and artists 0 Don t have to ask the government for a copyright automatic when create an artistic work 0 Copyrights are valid for the life of the author plus 70 years 0 Work must be xed in a durable medium like written or recorded 0 Cant copyright an idea but how expressed Patents protect inventions o 20 years of protection 0 Have to ask for one and have to have something new 0 Natural phenomenon is always unpatentable Trademarks protect products 0 Common law person who uses a symbol or mark is protected cant use trademark to sell a different product Coke v Koke o Lanham Act 1946 competitors cant use your trademark or confusingly similar trademark No MacDonalds Mc Donalds Weendys 0 Can keep renewing a trademark duration is potentially unlimited 0 Trade secrets it39s a crime to steal trade secrets CHAPTER 21 Employment Discrimination Employee privacy rights 0 Electronic monitoring in workplace ECPA Prohibits the intentional interception of any wire or communication Anti bugging statute Have the business exception can monitor phone calls in ordinary form of business 0 Phone calls and emails Zack bugs toilets D illegal break room D illegal Employer CAN listen to personal calls on business phone Court typically favors employers Lie detector EPPA Employee Polygraph Protection Act o Cant require or suggest that employees take a lie detector test protects current and new hires 0 only exception if there is theft it may be used as part of an investigation 0 Drug tests private employers can make employees take drug tests constitution doesn39t protect those from private employers CHAPTER 22 Employment Discrimination Title VII of the Civil Rights Act of 1964 o Creates a protected class cant discriminate against race color sex religion gender or national origin 0 Applies if have 15 employees in private sector Intentionaldiscrimination o Disparate treatment discrimination Can sue for these reasons only have to show these 4 things 0 Plaintiff is a member of a protected class 0 Plaintiff applied for the job and was quali ed 0 Plaintiff was rejected by the employer 0 Employer continued looking for applicants or gave the job to someone not in protected class who was less quali ed Unintentionaldiscrimination o Disparate impact discrimination sometimes have a hiring requirement or practice that doesn39t mean to discriminate 0 Example cops have to go through physical training young men just pass at a higher rate CHAPTER 24 Consumer Protection 0 Fair Debt Collection Practices Act FDCPA o Applies to secondary debt collectors aka collection agencies 0 Prohibited acts Collector can t call debtor at their place of employment Can39t call you at inconvenient times Can39t call debtor if have a lawyer Prohibits using harassment vulgarity false or misleading info 0 Credit Card rights and liabilities 0 When an unsolicited card is sent to someone and they spend the money then don39t have to pay what spent 0 Unauthorized charges friend steals card and spend money only have to pay 50 CHAPTER 25 Environmental l Common law actions a Most are statutes that protect the environment EPA rulesregs b Nuisance tort people could sue and would win if show the following i Defendants use of his land unreasonably interferes with plaintiffs use and enjoyment of his property ii Toxic torts torts against toxic polluters ll Hazardous waste a CERCLA or quotsuperfundquot wanted to regulate clean up of disposal sites where people dump hazardous waste i 19805 passed by congress ii quotPRPquot potentially responsible parties that can be sued by EPA for cleanup 1 Person who generated waste usually the business that made the mess 2 Person who transported the waste 3 Owner of disposal site at time of disposal 4 Current owner of the land where hazardous waste is leaking iii Joint and several liability under superfund also in tort cases 1 When have a group all jointly liable but also severally liable 2 So EPA can sue all of the 4 things and would have to pay all of the fees or could just sue one and theyd have to pay entire cleanup 3 One of the group get whole cost of damages 4 1 person can bring their own contribution lawsuit to cover his own share REVIEW Ch 1 in common law legal system follow the precedence from higher courts because of stare decisis quotstand on decided casesquot Murica and previously owned by the Brits inherited from England Civil lawquot based on the romans law all codi ed law so all statutory so not judge made law all they do is apply the code CH 2 Know names of the courts trial courts various names FED MO USSC MO sc US court of appealsonly consider questions of law Mo court of appealsonly consider questions of law like law errs Trial court district court all questions of facts Trial court circuit court all questions of fact Subject matter jurisdiction in federal court cant bring just any case to federal courts so must Involve federal questiontreaty statute US is a party constitution violation or must have diversity of citizenship and 75000 in controversy writ of certiorari how get in front of the US Supreme Court but will probs deny if have suf cient minimum contact with state have long arm statute CH 3 Have 3p mediator try to help resolve dispute by suggesting Arbitrators decision is legally binding Submission complaint Hea ng Award arbs decision can appeal but scope of review is tiny only set aside if there is misconduct crupption abuse of power or fraud CH 4 Duty based is religion Kantian respect humans Principle of rights Outcome based ethics is UTILITARIANISM is philosophy that the ethical decision is the one that creates the greatest amount of good for the greatest amount of people Sarbannes Oxley applies to publicly traded companies that makes them put in internal anti fraud checks con dential systems to report FCPA anti bribe law US business persons that bribe foreign officials is a criminal penalty but can do little 500gt bribes to make administrative services go smoothly CH 5 1St amendment Unprotected defamatory ghting words obscenity Equal protection clause Govt supposed to treat us all the same sometimes a law will treat people differently as a group When law based on a suspect trait race or national origin D USSC will apply highest level of scrutiny when looking at it highest level regulation of interstate commerce is federal Heart of ATL hotel v US ATL was a commerce Clause case decided on basis CH 6 Congress passes enabling legislation allows committees to do stuff Notice and comment rules Notice Must have comment period publication of the nal rule Scope of review someone violates heard by an ALj admin law judge called an order CH 7 criminal A tort is a private action Crime is an offense against society BARD Beyond A Reasonable Doubt is the criminal case burden of proof Must have required mental state to commit the crime rain jacket example Double jeopardy Oj Simpson prosecuted for murder found not guilty but sometimes act can be a crime and a tort Family brought a civil tort won that case No double jeopardy cant prosecute you for the same crime CH 9 4 basic elements of a contract agreement consideration capacity and legality Some have to be in writing like real estate contract takes more than a year collateral contract agree to pay debt of another marriage UCC sale of goods over 500 or more When there is Fraud innocent party can carry out or get out of the K CH 10 Damages Compensatory but person back in position would be in if the contract had been performed Liquidated put a set dollar amount in contract that agree that one will pay if contract is breeched equitable remedies CH 11 Contracts for the sale of goods UCC has special merchant rules merchants rm offer applied warranty of merchantability automatically when buy goods means must be merchant able and reasonably safe Applied warranty of tness know the purpose of goods and know the buyer is relying on the seller ll missing term is price delivery or CH 12 Tort feasor person who commits a tort Pure comparative fault plaintiff can get damages even if more to blame Negligence duty of care causation injury Vicarious liability one person is liable for the torts of another Resopondeat superior employment relationship tort by employee employee is in his employment then your company is liable CH 13 Express warranties when make a promise or a description and the seller is bound by that Strict liability if product is defective Ch 14 Patents protect inventors 20 yea rs Trademarks protect products duration is potentially unlimited Trade secrets are super secret and is a crime CH 21 Privacy stuff like lie detector cant force you to take UNLESS when investigating a theft in the business in MO can make you take a drug test employer can monitor phone calls and emails CH 22 TONS OF THIS KNOW THIS HAVE TO KNOW 4 ELEMENTS OF INENTIONAL DISCRIMINATION PROTECTED CLASS APPLIED AND QUALIFIED REJECTED HIRED SOMEONE ELSE KNOW SEXUAL HARASSMENT employer can be strictly liable if the employer does the harassing ADA reasonably accommodate diasabed Drug addicts protected under ADA as long as not currently using drugs AIDS is protected state employees aren39t protected under ADEA someone steas your visa only pay 50
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