Brainscape Flashcards
1
Q
- Characteristics of the legally astute manager, proactive approach;
A
PG 11 Legally Astute Manager – Is the ability of a manager to communicate effectively with counsel and to work together to solve complex problems. (1) Negotiate contracts, (2) protect and enhance the realizable value of the firm’s resources, (3) create options through contracts and other legal tools, (4) convert regulatory constraints into opportunities. PG 5 Proactive Approach – Dealing with the interface between a firm’s business and the natural environment that go beyond environmental regulatory compliance have been associated with improved financial performance
2
Q
- Ariely’s theory on the rationality of decision-making and examples
A
Movie Ariely’s Theory – Challenges readers assumptions about making decisions based on rational thought.
3
Q
- Relationship between law and ethics;
A
PG 20 Law and Ethics – The law does not prohibit all “bad” behavior. An action that is unethical may nonetheless be legal.
4
Q
- how to incorporate ethical principles into a -tree;
A
See chart
5
Q
- how to promote ethical behavior,
A
PG 21 How to Promote Ethical Behavior – Set at the top. The chief executive officer plays the most significant role is installing a sense of ethics throughout the organization.
6
Q
- Different ethical theories: e.g. Kant & Rawls
A
Rawlsian- Worst off person, Katian- look at action rather than result, Universe (wan everyone to act in this way) & Reverse (would want this rule applied to ones self?) PG 25 Rawlsian Moral Theory – A deontological line of thought that aims to maximize the utility of the worst off person in society. Kantian Theory – An ethical theory that looks to the form of an action, rather than the intended result, in examining the ethical worth.
7
Q
- teleological theories, e.g. utilitarianism and egoism
A
Theological Theory – Concerned with consequences. The ethical good of an action is to be judged by the effect of the action on others. Utilitarianism – a Major teleological system of ethics that strands for the proposition that the ideal is to maximize the total benefit for everyone involved. Egoism - Egotism means placing oneself at the core of one’s world with no concern for others, including those loved or considered as “close,” in any other terms except those set by the egotist.
8
Q
- Distinction between federal and state court jurisdiction.
A
Federal Jurisdiction – Federal Question Jurisdiction (does the dispute concern federal law), Diversity Jurisdiction (Lawsuit is between citizens of two different states, or between a citizen of a state and a citizen of a foreign country, over 75k), Determining Citizenship (an individual is a citizen of the state where that person has his or her legal residence or domicile.) State Jurisdiction – Most criminal cases, Probate (involving wills and estates), most contract cases, Tort cases (personal injuries), Family law (marriages, divorces, adoptions), etc
9
Q
- What is discovery?
A
Discovery – The process through which parties to a lawsuit collect evidence to support their claims. It is designed to promote settlement and more efficient trials by reducing the asymmetric information problem, which arises because each party has information not possessed by the other party.
10
Q
- What is its purpose ina lawsuit?
A
Purpose of a lawsuit – An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. Civil is punitive or monetary damage, Criminal is typically a crime against the state (people) and you are subject to jail/prison and a fine.
11
Q
- What is a deposition?
A
Are written or oral questions asked of any person who may have helpful information about the facts of the case.
12
Q
- What is voir dire?
A
• Voir Dire (Pg. 66) – Each side may challenge any number of jurors for cause during questioning of potential jurors
13
Q
- What is a class action lawsuit?
A
• Class Action Lawsuit (Pg. 59) – if the conduct of the defendant affected numerous persons in a common way, the case may be brought as a class action by a representative of the class of persons affected
14
Q
- What are the trial courts of the federal system?
A
• Trial Courts of the Federal System (Pg. 52) – District courts, courts of appeal, and the U.S. Supreme Court
15
Q
- What is a summons and its function?
A
• What is Summons and its function (Pg. 64) – Officially notifies the defendant that a lawsuit is pending against it in a particular court and that it must file a response to the complaint within a certain number of days
16
Q
- What is an appeal and how does the court hear appeals?
A
• What is appeal and how does the court hear appeals? (Pg. 67) – When a trial judge does not grant the motion for a new trial, the losing party can appeal the decision. The appellate court will review how the trial judge applied the law to the case and conducted the trial. Appeals court can review presentation of evidence at trial, the denial of motion for a directed verdict, the jury instructions, and even the jury award of damages. The appellate court will not review the facts de novo and will reverse a judge’s findings of facts only if they are clearly erroneous
17
Q
- What are sources of U.S. laws?
A
• Sources of U.S. Laws (Pg. 48) – Federal and state courts look to the U.S and state constitutions, statutes, regulations, and common (case) laws
18
Q
- What is common law?
A
• Common Law (Pg. 48) – A.K.A case law – the legal rules made by judges when they decide a case where no constitution, statute, or regulation exists to resolve the dispute
19
Q
- What is stare decisis?
A
• Stare-Decisis (Pg. 48) – Common law is developed through the doctrine of Stare Decisis which means “to abide by decided cases”
20
Q
- Personal jurisdiction and how it is obtained.
A
• Personal Jurisdiction and how it is obtained? (Pg. 55) – P.J. means that the court has legal authority over the parties to the lawsuit. It is obtained by means of telephone, calls, the mail, and fax machine
21
Q
- What is federal diversity jurisdiction?
A
• Federal Diversity Jurisdiction (Pg. 61) – Exists when a lawsuit si between citizens of two different states or between a citizen of a state and a citizen of a foreign country and the amount in controversy exceeds $75.000
22
Q
- Concurrent jurisdiction?
A
Exists when two or more from different systems simultaneously have jurisdiction over a specific case
23
Q
- What is discovery? How does it impact document retention policies?
A
Before trail is held and sometimes before an arbitration hearing or minitrial is conducted, parties collects evidence to support their claims, design to promote settlement and efficient trails by reducing asymmetric information problem. Failure to implement an effective policy can have disastrous effects, the company risks violating federal obstruction of justice statutes and discovery rules and incurring judicial sanctions.
24
Q
- Constitutional principles relating to business;
A
• Pervasive regulation of business include federal, state, and local levels. Depends on the type of business issue, regulation and the level of government involvement. Government regulation takes two forms: social regulation: workplace safety, equal opportunity, environmental, and consumer protection. Economic regulation: prices, production, and industry conditiona. • Although many provisions in the Constitution apply only to government actions, managers of private organization should be aware of the societal values reflected in the Constitution. These include the right to fair and equal treatment and respect for the individual.
25
25. what speech is protected and to what extent.
The US Supreme Court has not applied the 1st Amendment to protect all speech to the same degree. The type of speech most clearly protected is political speech, including speech critical of governmental policies and officials. A government may violate the right to free speech not only by forbidding speech, but by commanding it as well. • Defamation of Public figures by Media: defamatory words that harm a person’s reputation are protected by the 1st, even when they are false. • Obscenity: obscene material does not enjoy any protection • Commercial Speech: Especially advertising is subject to reasonable regulations regarding the time, place, and manner. Some state may prohibit false commercial speech if its misleading.
26
26. Limitations on interpretations and limitations on state actions related to the commerce clause.
Commerce clause gives Congress the power to regulate commerce with other nations, with Indian tribes, and between states. Federal powers enumerated in the Constitution impose many limits on state action. The Supremacy Clause makes federal laws supreme over state law. Limitations on interpretations to allow federal regulation of such areas as interstate travel, labor relations, and discrimination in accommodations.
27
27. What is equal protection?
The equal protection of the 14th amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.
28
28. What are the tests for the validity of government actions under equal protection?
The Supreme Court uses 3 different test to determine varies types of discrimination: (1) rational basis test, (2) strict scrutiny test, (3) substantially related test
29
29. What types of distinctions/classifications require which types of test by the courts?
Rational basis test: applies to all classifications that relate to matters of economics or social welfare. Will be upheld if there is any conceivable basis on which it relate to a legitimate governmental interest. (system of progressive taxation) • Strict scrutiny test: exercise a fundamental right based on race or color subject to strict scrutiny. Valid only if its is necessary to promote a compelling state interest and is narrowly tailored to achieve that interest (right to vote, right to travel, right of privacy) • Substantially related test: occasionally applies because is stricter than the rational basis test but less strict than strict scrutiny. Known as intermediate-level test, applies to gender and legitimacy of birth.
30
30. What is the Supremacy clause?
States that the Constitution, laws, and treaties of the US take precedence over state laws and that the judges of the state courts must follow federal law.
31
31. What is freedom of speech and how does it apply to business conduct?
Although the 1st Amendment stat that Congress shall make no law…abridging the freedom of speech or of the press, the US Supreme Court has not applied he 1st Amendment to protect all speech to the same degree. For business conduct, regulation is no more extensive than necessary does not require the least restrictive means, it requires only a “reasonable fit” between the government purpose and the means chosen to achieve it. For example, restricting liquor and tobacco to minor, unless state law required disclosure.
32
32. What kind of business speech is protected? By whom?
• Business speech especially advertising has always been subject to reasonable regulations regarding the time, place, and manner of such speech. The state may prohibit false commercial speech as well as explicity or inherently misleading business speech. First, the speech must concern lawful activity and not be misleading. The government regulate it by (1) asserted governmental interest in regulating the speech is substantial (2) regulation directly advances the governmental interests asserted (3) restriction is no more extensive than necessary to serve that interest.
33
33. What are limits on government’s regulation of commercial speech?
Commercial speech, especially advertising has always been subject to reasonable regulations regarding the time, place, and manner of such speech. Gov can still restrict as long as 1. Gov interest in regulating the speech is substantial 2. Regulation directly advances the gov interest asserted, 3. Restriction is no more extensive than necessary to serve that interest.
34
34. When may government take property through eminent domain? What are the criteria?
Power to take property for public uses, such as: building a school, park, or airport. The gov’t must pay ‘just compensation for the take over of land. The use of takeover must be for public purpose and the there must be just compensation. pg 118, 607-609
35
35. What is an agency relationship? How is it created?
a. “In an agency relationship, one person-that agent- acts for or represents another person- the principal. The agency relationship is consensual in nature and is typically created by agreement of the parties, which can usually be either written or oral. pg. 130
36
36. What duties are owed by the agent to the principal? Principal to agent?
The agent becomes a fiduciary. Loyalty, obedience, and care are the hallmarks of the fiduciary relationship. An agent has a duty to act solely for the benefit of his or her principal in all matters directly connected with the agency undertaking (duty of loyalty). An agent must exercise the same level of care that a reasonable person in a like situation would use. An agent is also obligated to obey all reasonable order of his or her principal. The principal must disclose all pertinent information, that could possibly benefit or harm, the relationship. pg 129-132
37
37. What is a fiduciary? How do you distinguish between an agent/employee/independent contractor?
Fiduciary: A person entrusted to protect the interests of another. An agent has to look out for the best interest of the principal, and the principal therefore can almost dictate the action of the agent. An employee relationship (the most common form) is ruled as a ‘master-servant’ relationship. The employer has the right to control the conduct of the employee. In an independent contractor relationship, the contractor may be working for the client (ex. plumber for the homeowner), however the independent contractors conduct is not fully subject to that person [client’s] control. pg 240 & 130
38
38. What is actual authority (implied and express)? What about apparent authority?
a. Actual authority is when the principle (“person”) gives the agent the authority to enter into agreements on their behalf. They may give consent to act for or bind the principle. b. Once an agent has “expressed authority”, they also have “Implied authority” is to do whatever is reasonable to complete the task at hand. If they have previously conducted certain actions in the past they have the implied authority to conduct them in the future (usual & customary) c. Apparent authority is created when a third party reasonably believes that an agent has the authority to act for and bind the principle. This belief may be based on the principle’s words or actions or on knowledge that the principle has allowed its agent to engage in certain activities on its behalf over an extended period of time.
39
39. For what actions is the principal bound? What is respondeat superior?
a. If the third party does not know that the agent is acting for the principle (an undisclosed principle) the principle will nonetheless be bound by any contract the agent enters into with actual authority. b. A principle may be liable for not only the contracts but also the torts of its agents. c. Respondeat superior- states that the agent’s employer will be liable for any injuries or damage to the property of another that the agent causes while acting within the scope of his or her employment. If the principle is required to pay damages to a third party because of the agent’s negligence, the principle had the right to demand reimbursement from the agent.
40
40. What are administrative agencies?
a. Fourth branch of government: Agencies solve problems that cannot effectively be handled by the legislature or courts, make rules, resolve conflicts, conduct investigations for compliance, revoke license, issue fines. b. Examples of admin agencies: IRS, SEC (Security Exchange Commission), they regulate pollution, emission, hazardous waste, internet, radio, television, food and drug, health and safety.
41
41. What are their powers?
1. Making rules 2. Conducting formal adjudications (court like proceedings) 3. Formal discretionary actions 4. Conducting investigations
42
42. Know the process of developing rules and how agencies may act.
a. 3- step process i. Notice to Public- gives notice to public of its intent to impose a rule; gives the public the opportunity to submit written comments; not required to hold formal public hearings; comments include: 1. Identifies the person that’s concerned 2. Explains why their concerned 3. Suggests a specific change to the language of the proposed rule 4. Provides factual information to support its position ii. Evaluation- evaluates & responds to comments; the agency may decide on the final rule or if there are substantial changes they may publish a revised proposed rule for public comment iii. Adoption- they will adopt the rule by publishing it in the “Federal Register” along with an explanation of the changes, then the final rule will be codifies …adding it to the “code of federal regulation”
43
43. Does the right to a jury trial exist?
a. The seventh amendment right to a jury trial extends only to cases for which a right to trial by jury existed in common law before the enactment of the 7th amendment. Because administrative agencies came after, there is NO constitutional right to a jury trial in a formal adjudication before an administrative agency.
44
44. Standard for judicial review of agency decisions.
Congress sets the standards for judicial review. 1. Courts will uphold agency action unless it is arbitrary and capricious. 2. Substantial evidence standard-courts to determine whether evidence could reasonably support the agency’s conclusion. 3. Statutory interpretation- courts will generally defer to an agency’s interpretation of a statute within its area of expertise. 4. Courts may not impose view on agency, they may only require the agency to comply with its own procedural rules and conform to the requirements. 5. No right to probe the mental processes of the agency. 6. Exhaustion of remedies – the timing and substance of thee administrative review process. 7. Ripeness-ensure court are not forced to decide hypothetical cases. 8. Standing Sue- a)injury in fact that is concrete and particularized b)injury must be fairly traceable to the challenged action c)must be likely as opposed to merely speculative.
45
45. Power of administrative law judges.
ALJ are entitled to administer oaths, issue subpoenas, rule on offers of proof and relevant evidence, authorize depositions and decide the case at hand. (pg. 146)
46
46. Ways businesses should work with administrative agencies.
Seven basic steps for working well with an admin agency: 1. Investigate to applicable standards that will govern the agency’s actions. 2. Identify and evaluate the agency’s formal structure. 3. Determine what facts are before the agency. 4. Identify the interests of others who may be involved in the decision-making process. 5. Adopt a strategy to achieve the desired goal. 6. Eliminate any adverse impact on other interested parties. 7. Get involved in the administrative process early and stay involved. (pg. 153)
47
47. When agencies can inspect.
• There is very little limit to the investigatory powers of administrative agencies. • Agencies can inspect a regulated company or person to determine if they are complying with the applicable laws and/or regulations. • Are not required to have probable cause before an investigation. • Can use their subpoena power to make mandatory requests for information, conduct interviews, and perform searches. (pg. 142 & 157)
48
48. Distinction between common law and civil law legal systems and the impact of those distinctions on businesses.
Common law is case law, that is, legal rules made by judges when they decide a case where no constitution, statute or regulation exists to resolve the dispute. Civil law is based on the constitution, statutes and regulations. Impact of civil law and common law on businesses????????????? (more to come)
49
49. Difference between choice of law and choice of forum clauses in contracts.
Regardless if a court agrees to hear a case, there is the matter of choice of law meaning which jurisdiction’s law to apply – federal or state. Question is resolved by a complicated set of conflict-of-laws rules but in the general application, the jurisdiction that has the greatest governmental interest in the dispute will provide the governing law. (pg. 58) US courts will honor “choice of forum” clauses in a valid contract which requires disputes to be resolved in another forum under its laws unless: 1.) the clause was fraudulently included in the contract, 2.) enforcement would deprive a party of his day in court, or 3.) enforcement would contravene a strong public policy of the forum in which suit is brought. (pg.56)
50
50. Void, voidable, valid contracts.
For a contract to be valid both parties must have the capacity. A contract entered by an incompetent person has the potential to be void, voidable or valid. Void = one party is legally incompetent and has a guardian appointed. Voidable = if party lacked mental capacity to understand subject matter, might be voidable. Valid = if party understood nature and effect of the agreement then valid – even if the party lacked capacity to engage in other activities. (pg. 176-177).
51
51. Elements of a contract.
A contract is a legally enforceable contract. Four elements of a contract: 1. Must be an agreement between parties, formed by offer and acceptance. 2. Party promises must be supported by something of value, also call consideration. 3. Both parties must have capacity to enter into a contract 4. The contract must have a legal purpose
52
52. When UCC Article 2 applies vs. when common law of contracts applies.
UCC Article 2 governs the sale of goods and transaction between one or more merchants. Goods are defined as things that are “movable” at the time of sale. Transactions involving “services” and everything not defined as tangible good is governed by common law. If transaction involves the sale of goods and services, look at the intent of the transaction or which area dominates.
53
53. What is an offer and components; who controls the terms of the offer?
An offer is a manifestation of a willingness to enter into a bargain that justifies another party in understanding that his or her assent will conclude the bargain. Components of a bargain: • Offeror has an intention to be bound by the offer • Terms of the offer are reasonably definite • The offer is communicated the offeree The offeror is the master of the offer
54
54. What situations are not offers?
• Advertisements are not offers • If the offer lacks essential terms of an agreement (i.e. price, subject matter, duration of contract, manner of payment, etc.) • Fraud • Duress
55
55. What is acceptance?
Is a response by the person receiving the offer that indicates a willingness to enter into the agreement proposed in the offer. an agreement to the amount offered for certain services or products. Acceptance may be verbal, written, or implied by action.
56
56. How unilateral/bilateral offers accepted.
a. Pg. 175 Consideration can be either a promise to do a certain act (bilateral) or the performance of the act itself (Unilateral) b. Bilateral- promise given in exchange for another promise, ex: I’ll give you $10 now, if you promise to take me to school c. Unilateral- promise given in exchange for an act, ex: Drive me to school and I’ll give you $10
57
57. Mirror image rule in common law and UCC.
a. P. 175 Common Law Mirror image- requires the acceptance to contain the exact same terms as the offer. b. P. 208 UCC- an acceptance may contain additional or different terms; an offer can be accepted in any manner or any medium that’s reasonable
58
58. Counteroffers and their effect; inquiries and their effect.
a. P. 173 A counteroffer terminates the original offer. b. Inquiring into the terms of the offer is not a rejection.
59
59. Be able to define consideration.
a. P. 175 Contracts require that each side provide something of value, called “consideration” b. Ex.: money, an object, service, promise, giving up a right…must be legal
60
60. What is past consideration
a. it's where the contract comes after one party has performed and sometimes is not enforceable
61
61. What is unconscionability?
a. P. 180, 221- A contract term is unconscionable if it’s so unfair as to shock the conscience of the court, the judge may decline to enforce the offending terms or the entire contract. To decide the court will consider: i. Was the contract obligation bargained for ii. The parties understood and accepted the obligation b. Unconscionablility can be procedural (no choice but to accept) or substantive (terms are unduly harsh or oppressive)
62
62. Who has contractual capacity?
a. P. 176 anyone except minors and mentally incompetent- as long as they understand the nature and effect of the agreement b. Minors & mentally incompetent cannot enter into contracts- unable to protect their own interests
63
63. What if the person is intoxicated?
a. They can still be held to the contract
64
64. What if the person is a minor?
a. Minors & mentally incompetent cannot enter into contracts- unable to protect their own interests
65
65. When may a minor avoid a contract?
a. P. 176 Almost always, and at any time, the law gives minors the power to repudiate (reject) their contractual obligations
66
66. Liquidated damages clauses and their enforceability; when specific performance is a remedy.
clause that specifies the amount of money to be paid if one of them should later breach the agreement. Specific performance is ordered only when-1.Goods are unique 2.suject of the contract is real property 3. The amount of the loss is so uncertain that there is no fair way to calculate damages.
67
67. What is the obligation to good faith and fair dealing?
a. Every contract or duty within this Act [UCC] imposes an obligation of good faith in its performance and enforcement. Honesty in fact and observance of reasonable commercial standards of fair dealing. [pg 215] Also, see question #72.
68
68. What is an express warranty?
a. Guarantee by the seller that the goods will have certain qualities. i. Creation of express warranty 1. First, seller must: a. Make a statement or promise relating to the goods b. Provide description of the goods c. Furnish a sample or model of the goods 2. Second, this statement, promise, description, sample or model must become a “part of the basis of the bargain”
69
69. What are implied warranties (2 major types)?
a. Implied Warranty of Merchantability: guarantees that the goods are reasonably fit for the general purpose for which they are sold and that they are properly packaged and labeled. i. It does not depend on the seller’s statements. Rather it depends on the identity of the seller as merchant who deals in good of a certain kind. [pg 217] b. Implied Warranty of Fitness for a Particular Purpose: Guarantees that the goods are fit for a particular purpose beyond the scope of ordinary purposes for which the seller recommended them. [pg 217]
70
70. What is UCC; what Article 2 covers,
a. Uniform Commercial Code (UCC) deals with commercial transactions, from the use of negotiable instruments to secured transactions. The UCC is a model law, which states may choose to adopt. [pg 206] b. Article 2 of the UCC: Deals with contracts for the sale of goods. Defining a product a good vs a service is critical because the UCC’s warranties and product liability in tort.
71
71. What are goods?
a. All things (including specially manufactured goods) that are movable at the time of identification to the contract for sale. [G-12 & pg 206] i. Identification to contract: Setting aside or otherwise designating the particular goods for the sale under contract. [pg 206]
72
72. Obligation of good faith.
a. Honesty in fact and observance of reasonable commercial standards of fair dealing. Imposes on each party duty not to do anything that will deprive the other party of the benefit agreement. One court defined it as a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties. [pg 215]
73
73. Know contract formation under UCC;
a. UCC permits a contact to be enforced if parties intended a binding contract, even though important terms may have been left open for later agreement. Court may use “gap filler” as provided by the UCC if dispute occurs. [pg 208] i. \*Additional information in question #76.
74
74. importance of difference between unilateral and bilateral contracts;
a. Unilateral Contract: a promise given in exchange for an act. No contract exists until the act is done. [pg 175] b. Bilateral Contract: a promise given in exchange for another promise. [pg 175]
75
75. UCC and common law.
a. UCC Law: Commercial transactions involving the sale of goods, that is, movable personal property. As well as the laws governing the sale of goods internationally and contracts for the sale and licensing of software. b. Common Law: Employment agreements and other contracts involving services, leases and sales of real property, loan agreements, stock-purchase agreements, settlement agreements, and joint venture agreements. [pg 172]
76
76. Requirements necessary for an offer; firm offer; acceptance of offers; mirror image rule under UCC article 2.
a. Offer: UCC does not define offer. Therefore, common law principals determine whether an offer has been made. Neither an invitation for bids nor a price quotation is an offer. [pg 208] b. Firm offer: signed offer by a merchant that indicates that the offer will kept open, is not revocable for lack of consideration. [pg 213] c. Acceptance: UCC does not define either, except to state that an acceptance may contain terms additional to or different from those in the offer. This is different from common law mirror image rule. [pg 208] i. Mirror image rule: Requires the acceptance to contain the same exact terms as the offer. d. Definite Response: Contract exists when both parties act as if there is a contract between them. If the offeree’s response manifests the intent to enter into a deal, the offer has been accepted. [pg 210] e. Conditional Response: If the offeree wants to make a counteroffer rather than an acceptance, he or she should state “clearly” that acceptance is conditioned on the offer’s agreement to the additional or different terms. [pg 210] f. Acceptance with Missing Terms: UCC policies will serve as “gap-fillers.” [pg 210] g. Acceptance with Additional Terms: Depends if parties are merchants. i. Definition of Merchant: a person who deals in goods of the kind or otherwise by its occupation holds itself out as having knowledge or skill peculiar to the practices or goods involved in the transaction. [GL-16] 1. Non-Merchants: Additional terms are interpreted as provisions, not part of the contract. Unless the offeror expressly agrees to the added provisions, they do not become part of the contract. [pg 210] 2. Merchants: Additional provision become part of the contracts, unless a. Offer expressly limits acceptance ot the terms of the offer b. New terms materially alter the original offer c. Original offeror notifies the other party within a reasonable time it objects. [pg 210]
77
77. Battle of the forms and rules of acceptance between merchants. affect on creation of warranties.. right to reject/accept goods.
BoF-the parties negotiate the essential terms of the contract but neglect to bargain over items that are less immediately important. Definite response-whenever parties act as if there is a contract between them. Conditional Reponse-offerpr wants to make a counter offer rather than an acceptance. Acceptance with missing term-when the parties ship, receive, and pay for goods without first agreeing on all material terms. Acceptance with additional terms-effect of an acceptance that includes additional terms without expressly making the contract subject to the offeror’s agreeing to those terms. Acceptance with Different Terms-effect of different as opposed to additional terms in an acceptance when the acceptance is not expressly make subject to the offeror’s agreeing to those terms.
78
78. What is a tort?
A tort is a civil wrong resulting in injury to a person or property. A tort case is brought by the injured party to obtain compensation for the wrong done. A Crime is a wrong to society that is prosecuted by the state. Even though a crime may be committed against an individual, the victim is not a party to a criminal action. Criminal law is generally concerned with protecting society and punishing the criminal, not compensating the victim.
79
79. Distinction between tort and crime.
The distinctions between tort and crime law are not always clear as they first appear, however. A criminal statute might call for the criminal to compensate the victim. The Victim might sue the perpetrator of the crime in tort, using the violation of a criminal statute as a basis for the tort claim. In some instances, tort law, like criminal law, purports to protect society through the award of punitive damages.
80
80. Intentional torts and defenses to them.
Intentional torts require the plaintiff to prove 1. Actual or implied intent. 2. Voluntary act by the defendant, 3. Causation and 4. Injury of harm. (1. Actual Intent: can be shown by evidence that the defendant intended a specific consequence to a particular individual. Defenses: The most frequently raised defense is consent. If the plaintiff consented to the defendants act, there is no tort. Even if the plaintiff did not explicitly consent, the law many imply consent.
81
81. Difference between assault and battery.
Assault: is an intentional, nonconsensual act that gives rise to apprehension (not necessarily fear) that a harmful or offensive contact is imminent. Generally, assault requires some act, such as threatening gesture, plus the ability to follow through immediately with a Battery. Battery: is intentional, nonconsensual, harmful or offensive contact with the plaintiff’s body or with something in contact with it. (Putting poison in someone´s food is a battery).
82
82. What is the business context for false imprisonment charges?
False imprisonment is intentional, nonconsensual confinement by physical barriers, by physical force or by threats of force. Business: It is false imprisonment is a store clerk grabs a package from a customer walking out the door, because the customer cannot be expected to abandon the package to leave the store.
83
83. What are the elements of intentional infliction of emotional distress?
The tort of intentional infliction of emotional distress protects the right to peace of mind. To prove it, a plaintiff must show: 1. Outrageous conduct by the defendant, 2. Intent to cause, or reckless disregard of the probability of causing emotional distress. 3 Severe emotional suffering and 4. Actual and proximate (legal) causation of the emotional distress. The mental distress must be foreseeable.
84
84. What is defamation and what defenses are available?
Is the communication (often termed publication) to a third party of an untrue statement, asserted fact that injures the plaintiff’s reputation by exposing him or her to “hatred, ridicule, or contempt”. Libel is written defamation. Slander is spoken defamation. Truth is an absolute defense to a defamation claim in most jurisdictions. The Law presumes that the plaintiff has a pristine reputation, but it will not protect a reputation the plaintiff does not deserve. The burden is on the defendant to prove that the derogatory statements are true. Others defenses are framed in terms of privilege and may be asserted in a number of circumstances. An Absolute privilege cannot be lost. Qualified privilege can be lost under certain conditions.
85
85. Definition of negligence and defenses to it (assumption of risk, comparative negligence).
Negligence is defined as conduct that involves an unreasonably great risk of causing injury to another person or damage property. In some Jurisdictions, the defendant may absolve itself of part or all of the liability for negligence by proving that the plaintiff was also negligent. Assumption of risk defense requires that the plaintiff: 1.Knew the risk was present and understood its nature and 2. Voluntarily chose to incur the risk. Consent to an intentional tort, relieves the defendant of any liability. Comparative negligence, the plaintiff may recover the proportion of his or her loss attributable to the defendant´s negligence.
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86. Tests for causation under negligence.
To establish liability for negligence, the plaintiff must show that: 1. the defendant owed a duty to the plaintiff to act in conformity with a certain standard of conduct, that is, to act reasonably under the circumstances. 2. The defendant breached that duty by failing to conform to the standard 3. A reasonably close casual connection exists between the plaintiff’s injury and the defendant’s breach. 4 the plaintiff suffered and actual loss or injury.
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87. Strict liability.
Liability without fault, that is without either intent or negligence
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88. Joint and several liability & what it means.
In a case which the court determines that multiple defendants are at fault; the doctrine whereby a plaintiff may collect the entire judgment from any single defendant, regardless of the degree of the defendant’s fault. In a case which the court determines that multiple defendants are at fault; the doctrine whereby a plaintiff may collect the entire judgment from any single defendant, regardless of the degree of the defendant’s fault.
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89. What is negligent hiring?
An employer is negligent if the employer hires an employee who endangers the health and safety of other employees. An employer is negligent if the employer hires an employee who endangers the health and safety of other employees.
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90. Know product liability theories: negligence, strict liability & breach of warranty.
a. Negligence: To prove negligence in a products case, the injured party must show that the defendant did not use reasonable care in designing or manufacturing its product or in providing adequate warnings. b. Strict liability: Allows a person injured by an unreasonably dangerous product to recover damages from the manufacturer or seller of the product even in the absence of contract. The product needs to reach the consumer without substantial change in the condition in which it was sold. c. Breach of Warranty: Whether the quality, characteristics, and safety of the product were consistent with the implied or express representations made by the seller. A buyer may bring a warranty action whenever the product fails to meet the standards that the seller represented to the buyer at the time of purchase.
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91. Know different types of defects that make a product defective.
a. Manufacturing Defect: A flaw that occurs during production, such as failure to meet design specifications. b. Design Defect: Occurs when a product is made according to specs, however, due to its inadequate design or poor choice of materials, is unreasonably dangerous to users.
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92. What is an unavoidably unsafe product?
A product, such as a vaccine, that is generally beneficial but is known to have harmful side effects in some cases. The value of using the product outweighs the risk of harm from its use.
93
93. What is the difference between a patent, copyright, trademark and trade secret? In particular, be able to recognize the difference between them, identify any registration requirements to protect them and what constitutes infringement.
a. Patent: A government granted right to exclude others for a stated period of time (usually 20 years) from making, using, or selling within the governments jurisdiction an invention that is the subject of the patent. Requires detailed filing with U.S. Patent and Trademark Office (PTO) which performs a search for prior art and can impose hefty fees. Patents may be infringed in 3 ways: directly, indirectly, or contributory (page 310) b. Copyright: The legal right to prevent others from copying the expression embodied in a protected work. No registration is required, though notice and registration can strengthen rights. Infringement occurs when a party copies, modifies, displays, performs, or distributes a copyrighted work without the owner's permission. c. Trademark: A word or symbol used on goods or with services that indicates their origin. Only need to use mark in commerce, though filing with U.S. PTO office is usually desirable to gain stronger protection. To show infringement, the trademark owner must prove 1: the validity of the mark, 2: priority of usage of the mark, and 3: a likelihood of confusion in the minds of the purchasers of the products in question d. Trade secret: Information that derives independent economic value from not being generally known and that is subject to reasonable efforts to maintain its secrecy. Requires reasonable steps to protect-generally a trade secret protection program. e. In particular, be able to recognize the difference between them, identify any registration requirements to protect them and what constitutes infringement (see above).
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94. What are the elements of a crime (mens rea and actus reus)?
1: An act that violates an existing criminal statute (actus reus, guilty act or wrongful deed), and 2: the requisite state of mind (mens rea, guilty mind) page 433.
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95. Different types of states of mind for criminal liability.
a. Negligence: The failure to see the possible negative consequences of one's actions that a reasonable person would have seen. b. Recklessness: the conscious disregard of a substantial risk that one's actions will result in the harm prohibited by the statute. c. Intent: When a person consciously intends to cause the harm prohibited by the statute, or when they know such harm is substantially certain to result from their conduct.
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96. Difference between a felony and a misdemeanor.
a. A felony: A crime punishable by death or by imprisonment for more than one year. b. and a misdemeanor: A less serious crime, punishable by a fine or jail sentence of one year or less (p 432).
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97. May a victim of a crime sue the defendant for civil damages?
YES! Page 434
98
98. What is manslaughter in California
The California penal code defines manslaughter as “the unlawful killing of a human being without malice.”California voluntary manslaughter is the killing of another person in the heat of passion or in the midst of a sudden quarrel without “malice aforethought.”
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99. What is an at will employment contract?
the employee can quit at any time and the employer can discharge the employee at any time, for an or no reason.
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100. In what contexts would one normally find a just cause termination contract?
P. 345 Public employees require just cause for discharge and guarentee admin procedures to determine just cause for discharge. Union contracts, which almost universally require just cause for termination and establish grievance procedures whereby the employee can challenge their discharge.
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101. An at will employment contract?
The employee can quit at any time, and the employer can discharge the employee at any time for any or no reason with or without advance notice.
102
102. What exceptions are there to the at-will employment contract rule?
Public employees and unionized workers ar not subject to the at-will rule.
103
103. What are sources of the law of wrongful discharge?
Public Policy,Implied contract, implied convenant of good faith and fair dealing.
104
104. When are drug testing, polygraph testing, genetic screening, health screening and employer surveillance permissible?
Depends on 4 factors: 1)the scope of the testing program, 2) whether the employer is a public or private employer, 3) any state constitutional guarantees of a right to privacy, 4) any state statutes regulating drug testing.
105
105. Advantages and disadvantages of different forms of doing business, especially in the area of control, liability, property ownership, and tax burden.
Sole Prop. Advantages-flexibility afforded by having one person in complete control, the easiest and least costly form of business. Disadvantages- if the business loses money, the proprietor alone bears liability, all assets are therefore at risk. Partnerships- Advantages-allows for a wide variety of operational and profit-sharing arrangements, subject to only one level of tax, does not pay income taxes as a separate entity, pass through to the individual partners who report income on their individual returns. Disadvantages-individual partners are subject to personal liability for the obligations of the partnership. Corporation-advantage-the liability of its shareholders is limited to their investments. Only the corporation itself is responsible for its liabilities, ability to raise significant capital by selling transferable ownership shares of corporate stock/equity
106
106. Distinction between limited partnership and partnership.
pg. 593 Limited partnership- the liability of a limited partner is usually restricted to the amount of capital the limited partner has contributed or agreed to contribute to the partnership. When property is held in partnership, each partner is liable for any debts of the partnership remaining after any debts of the partnership assets are exhausted.
107
107. How LLCs are created.
Authorized by state law that is taxed like a LP and provides its members with limited liability and gives its members the right to participate in management without incurring unlimited liability.
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108. How corporations are created.
A corporation is authorized by state law to act as a legal entity distinct from its owners.
109
109. What is the EEOC and what does it do?
Equal Employment Opportunity Act,-the primary enforcer of civil rights legislation in the US. A part of the Dep. Of Justice, processes hundreds of complaints, investigating and evaluating their merits.
110
110. What is the Age Discrimination in Employment Act and what does it do?
Protects persons 40 years and older rom discrimination on the basis of age.
111
111. What does the Civil Rights Act of 1964 prohibit?
P. 392 a. Prohibits discrimination on the grounds of race, color, religion, or national origin. Later amended to provide that discrimination on the basis of sex includes pregnancy, childbirth, or related medical conditions.
112
112. What does the California Fair Housing and Employment Act prohibit?
a. Basically, everything in ch. 13 b. Prohibits harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave
113
113. What is gender (sex) discrimination?
Pg 399 a. Discrimination “because of sex” where members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.
114
114. What is sexual harassment and what are the types?
P. 397- a. Sexual discrimination, by men or women, that is prohibited by Title VII i. Quid Pro Quo: This for that (denial of promotion, in retaliation for a person’s refusal to respond to sexual advances) ii. Hostile Environment: Adverse job environment, determined by: 1. Frequency and severity of discriminatory conduct. 2. Whether it is physically threatening or humiliating, or merely an offensive utterance. 3. Whether it unreasonably interferes with the employee’s work performance. iii. Same-Sex Harassment: harassment where the harasser is the same sex as the employee being harassed. iv. Sexual Orientation and Transgender: Harassment based on a person’s sexual orientation.
115
115. What is religious difference between disparate impact and disparate treatment cases?
P. 395 a. Disparate Treatment: Intentional discriminating against a person by denying a benefit or privilege of employment because of his/her race, color, religion, or national origin. E.g., medium build weight requirements for women, but large build weight requirements for men. b. Disparate Impact: UN-Intentional discrimination against a person by denying a benefit or privilege of employment because of his/her race, color, religion, or national origin. E.g., lifting requirements that unintentionally exclude women who can’t lift as much as men, but could do the job equally as well.
116
116. What is the Americans with Disabilities Act? What does it prohibit?
P. 412 a. ADA protects persons with physical/mental disabilities from job discrimination, based on their disability. b. (Title I) ADA prohibits employers from discriminating against a qualified individual because of a disability in regard to job application procedures, hiring, advancement, discharge, compensation, job training and other terms, conditions and privileges of employment.
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117. What is reasonable accommodation?
P. 412/415 a. The ADA requires employers to make “reasonable accommodations” as requested by employees who have a physical/mental impairment that substantially limits a major life activity (walking, seeing, hearing, speaking, working, etc.) i. It includes: 1. Making work facilities accessible, restructuring jobs or schedules, reassigning an individual to another job, acquiring or modifying equipment, modifying exams/training material, providing readers, or interpreters. ii. Reasonable accommodation is required as long as it does not cause the employer “undue hardship”.
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118. When is an affirmative action plan acceptable?
P. 420- a. When the contractor agrees: i. Not to discriminate in employment on the basis of race, color, religion sex or national origin. ii. To take affirmative steps to prevent discrimination iii. To file equal opportunity surveys every other year. \*\*\*in some cases the plan the affirmative action plan must be put in writing.
119
119. What is the Equal Pay Act and what does it prohibit?
P. 392 a. Equal Pay Act mandates equal pay for equal work without regard to gender. b. Prohibits discrimination on account of sex in the payment of wages by employers.
120
120. How these statutes affect the questions employers can ask.
P. 425 a. Federal laws do not expressly prohibit preemployment questions inquiries concerning an applicant’s race, color, national origin, sex, marital status, religion, or age, such inquiries are disfavored because they create an inference of that these factors will be used as selection criteria.
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121. What basic kinds of questions cannot be asked under the antidiscrimination laws?
Cannot be asked questions based on race, color, religion, national origin, or sex.
