BLAW 2001 BLAW 2001
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This 7 page Class Notes was uploaded by Megan Hanson on Tuesday March 1, 2016. The Class Notes belongs to BLAW 2001 at University of Minnesota Duluth taught by Thomas Reed in Spring 2016. Since its upload, it has received 144 views. For similar materials see Business Law in Business Law at University of Minnesota Duluth.
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Date Created: 03/01/16
1/19/16 Note – understand the learning objectives from the power points CHAPTER 1 Common law (case law) – a judge makes a decision – developed from court decisions Sources that establish law (primary) o Constitution o Statutes passed by legislature o Case law o Regulations created by administrative agencies (FDA) Primary Source – the constitution Secondary Source – books/articles 1/21/16 Statutory laws – enacted by legislatures; local, state, and the federal government each have statutory codes o Uniform laws – a group of laws written by scholars, which can be adopted in part or whole by legislatures Administrative Law – written rules established by local, state, or federal agencies Judicial branch – main function is to interpret and apply the laws Stare Decisis Precedent – court decision work on the principle of precedent o Lower courts must follow decisions of higher courts o Courts should not overturn their own decisions unless there is strong justification for doing so o Ensures that the legal system is more stable and predictable Equitable remedies and the courts of equity – remedies are given to parties to compensate them for a loss o Occurs when courts give compensation outside the normal guidelines which gives the court a lot of discretion to provide the relief that it sees fit o Remedy at law = money damages o Possible outcomes Specific performance – an order to perform what was promised (contracts) Injunction – an order to refrain from an act (restraining order) Rescission an order to cancel a contract and return parties to original positions Substantive Law – written rules that define prohibited conduct Procedural Laws – the methods that must be followed in enforcing substantive law 1/26/16 Case citations: Smith v United States, 789 F.2d 1011 (3d Cir. 1984): o Parties: Smith and the federal government o Case found in volume 789 of the Federal Reporter on page 1011 o Case decided by the third circuit court of appeals in 1984 Plaintiff/petitioner – the party initiating the suit Defendant/respondent – the person the suit is brought against Concurring opinion – written by one of more justices that agree with the majority but want to bring up another point Dissenting opinion – the views of one or more justices who disagree with the majority CHAPTER 4 Supremacy clause – states that the constitution is the supreme law of the land Commerce clause – states the power to regulate interstate commerce (federal government only) Due process clause – everyone is allowed life, liberty, and property without correct due process of the law 1/28/16 CHAPTER 2 Ethics – the study of right and wrong behavior, whether an action is fair, right, or just o The moral minimum, complying with the law, is NOT ENOUGH The importance of ethics in business making decisions o The legal implications of the decision o The public relations impact o The safety risks to the employees and the public o The financial implications Short vs. long run maximization: o Short – has unethical benefits – a company might decide to sell a defective product to increase profits o Long – has no benefits because of the outweighing costs like lawsuits – when the cost of lawsuits and bad publicity is considered, unethical conduct will cause the business to suffer The relationship of law and ethics: o Most companies enact internal ethical codes to set consistent standards – consider: Profits Treatment of people Treatment of the planet Ethical reasoning – the application of morals and ethics to a given situation, can be duty or outcome based o Duty based – we have a duty to care for others Religious principles Principle of rights – liberties that need to be respected o Outcome based – strongest duty is to the company’s stockholders – this is the stakeholder’s approach Utilitarianism – the best course of action is the one that promotes the greatest good for the greatest number of people Costbenefit analysis – weighing the pros and cons of an action – the side with more pros should be followed 2/2/16 Corporate Social Responsibility (CSR) – corporations should be held responsible for their duty to society o Not required by law o Companies are judged on their social impact like donations to social causes and their impact on the environment A systematic Approach – business process pragmatism o Inquiry – understand the problem, the parties involved, and the relevant facts o Discussion – list possible actions o Decision – agree on the best course o Justification – explain the reason for the decision o Evaluation – determine if the decision was effective The Foreign Corrupt Practices Act (FCPA) – prohibits bribing foreign official to obtain contracts CHAPTER 3 Judicial review – the process for determining constitutionality of the decisions made by the legislative and the executive branches o Power to do this from Marbury v Madison 1803 Jurisdiction – a court’s authority to decide a case o Can have original or appellate jurisdiction o Concurrent – when the state and federal courts have jurisdiction to hear the case o Exclusive – when only one has the jurisdiction 2/04/16 The state court system – may include trial courts of general and limited jurisdiction, appellate courts, and the state’s highest court Trial courts: o Small claims courts are informal, inferior civil courts with limited amounts in controversy o Trial courts that have general jurisdiction may be called county, district, superior, or circuit courts o Deals with questions of fact – what happened in regard to the dispute being tried Pretrial procedures o Pleadings: statements detailing the facts, charges, and defenses in a case The plaintiff’s complain contains facts to establish jurisdiction, the allegations, and the remedy sought The defendant’s answer admits or denies the allegations and establishes defenses. Can also include a counterclaim A reply is the plaintiff’s response to a counterclaim Motion to dismiss when the defendant asks the court to dismiss the suit for legal reasons (most cases are settled or dismissed before trial). o Discovery – process by which parties obtain information prior to the trial (pretrial) Electronic Discovery – electronic evidence can be requested as well Depositions – sworn testimony recorded and transcribed by a court reporter Interrogations – written questions and answers under oath o Jury Selection (voir dire) Parties question the potential jurors Parties have limited peremptory challenges, where they can eliminate a candidate without providing a reason Parties have unlimited challenges for cause, where they ask the judge to remove the candidate due to potential bias At the trial: o Opening statements o Plaintiff’s case After the plaintiff rests, the defense can ask for a motion of directed verdict if they feel the elements of the case were not met o Defendant’s case o Plaintiff’s rebuttal o Closing arguments o Verdict The appeal the party may appeal for any legal issue Alternatives to a trial – generally can be easier and cheaper o Negotiation – parties attempt to settle dispute informally, with or without attorneys o Mediation – a third party person proposes a resolution o Arbitration – a third party person imposes a resolution – performs like a trial but informal – binding but not appealable 2/9/16 CHAPTER 5 Torts – civil legal wrong that results in harm or injury to others Purpose – to compensate those that have suffered a loss due to another’s wrongful conduct. If there is no harm, there is no violation. Damages available: o Compensatory damages – reimburse the plaintiff for actual losses o Punitive damages – monetary damages used to punish (and deter) the defendant – only allowed in circumstances where the conduct was particularly bad Tort reform – critics argue that it leads to unnecessary lawsuits and clogs the courts o Some jurisdictions have taken steps to decrease the number of lawsuits: Limiting the amount of damages that can be awarded Capping the amount of lawyers can accept on contingency fees Requiring the losing party to pay both parties’ legal fees Classification: Intentional torts – the party must have intended to commit an act which interferes with another’s interests o Intended the consequences of the act; or o Knew with substantial certainty that certain consequences would result o The intent can be transferred if the party intended to harm one person and harmed another instead o Harmful/evil motives do not need to be proved o Example: jokingly pushing someone, they fall on the road and are run over by a car – not a harmful/evil motive – but intended to push o Types of torts against persons – can be criminal OR civil lawsuits Assault – putting another in fear of receiving an immediate harm Battery – harmful or offensive contact – going though with the act False imprisonment – confining or restraining another Intentional infliction of emotional distress – outrageous conduct that causes emotional harm o Defamation – wrongfully hurting another’s reputation by making false statements of fact The statement must be published or told to someone other than the plaintiff Opinions are protected free speech and not defamation If the statement was true, there is no defamation Libel written Slander – oral o Invasion of privacy/trespass to land o Fraudulent misrepresentation (fraud) important Misrepresentation of a material fact Intent to deceive Reliance (justifiable) Injury Negligence – Unintentional the failure to exercise a duty of care that a reasonable person would exercise in the same situation o Elements: A legal duty of care Breach of that legal duty Causation – harm wouldn’t have occurred without the action Damages o Reasonable person – the defendant is held to the same standard as a reasonable objective person in the defendant’s same situation would have acted o People who invite others onto property have a duty to keep the premises safe o Professionals have a duty of care towards their clients 2/11/16 Negligence (continued) o Assumption of risk: a plaintiff who voluntarily enters a risky situation is not allowed to recover o Contributory negligence – used in a few states, if the plaintiff is also negligent, it bars recovery o Comparative negligence – used in most states, if the plaintiff is also negligent, then the plaintiff’s level of fault determines if and how much is recovered Strict Liability – imposed for certain activities o Abnormally dangerous activities Ex. people knowingly keeping dangerous animals o Product liability – for manufactures/sellers of defective or harmful products CHAPTER 12 Sales, Leases, and Product Liability Warranties – an assurance by the seller concerning the goods o Arises in most sales o Title warranties: Good title – the property belongs to the seller No infringements: free of copyright, trademark or copyright claims o Express warranties – the seller makes representations about the quality of the goods – ex. Description, sample/model Opinions are not warranties (ex. this is the best car in the world) Product Liability – those who make, sell, or lease goods can be held liable for physical harm or property damage that those goods cause Negligence – manufactures must exercise due care to make a product safe Misrepresentation – when a buyer is knowingly misled about a product Strict Product Liability: o Product must be in defective condition when sold o Defendant is in the business of selling the product o Product must be unreasonably dangerous o Plaintiff must be physically harmed o Defective condition must be proximate cause of injury o Goods are in substantially same condition as when sold Defenses to Product Liability: o Assumption of risk o Product misuse o Comparative negligence o Commonly known dangers 2/16/16 CHAPTER 20 Consumer protections Examples: Advertising, labeling and packaging, sales, good and drugs, product safety, and credit protection Deceptive Advertising – a reasonable consumer would be mislead o Advertising that appears to be based on factual evidence o Claims based on halftruths o Baitandswitch advertising – advertising a product at a low price to lure customers in to buy more expensive items o Federal Trade Commission Actions – the FTC is charged with enforcing federal laws against deceptive advertising, and can Issue ceaseand0desist orders Require counter advertising to correct earlier false claims Institute a multiple product order for all products made by the company Credit Protection: o The truthinLending Act – a disclosure law that applies to firms who: lend funds, sell on credit, or arrange an extension of credit Applies to installation contracts All of the terms of a credit instrument must be clearly and conspicuously disclosed A lender must disclose the annual percentage rate (APR), finance charge, amount financed, and total payments o Fair Debt Collection Practices Act – the agency must include validation notice giving debtor time to challenge the debt collection agencies may not: Contact the debtor at their place of employment Contact the debtor at unusual times Contact third parties other than the debtor’s parents, spouse, or financial adviser about payment of a debt Harass or intimidate the debtor Communicate with the debtor after they refuse to pay the debt, except to advise of further action to be taken
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