Exam 1 (ch 1,2,3,7,8) Flashcards
1
Q
What is business law
A
enforcable rules of conduct that governs commercial RELATIONSHIPS. Buyers and sellers interact in market exchange within the boundaries of legal business behavior
2
Q
What is law ?
A
Permit certain authorities to make and enforce rules describing what behavior is permitted and encouraged in their community.
-Rules of conduct in any organized society that are enforced by the governing authority of the community
3
Q
what is private law?
A
-Law that involves suits between private individuals or groups
4
Q
What is public law
A
Law that involves suits between private individualists or groups and their government
5
Q
What is civil law
A
The body of laws that govern the rights and responsibilities either between persons or between persons and their government
6
Q
What is criminal law
A
The body of law that involve the rights and responsibilities and individual has with respect to the public as a whole
7
Q
what is constitutional law
A
The general limits and powers of government as interpreted from its written constitution
8
Q
what is statutory law
A
The assortment of rules and regulations put forth by legislature
9
Q
what are model laws?
A
Laws created to account for the variability of laws among states. These laws serve to standardize the other wise different interstate laws. Also called uniform laws
10
Q
what is case law?
A
The collection of legal interpretations made by judges. They are considered to be law unless otherwise revoked by a statuary law
- Also Known as COMMON LAW
11
Q
What is precedent?
A
A Tool used by Judges to make ruling on cases on the basis of key similarities to previous cases
12
Q
What is stare decisis
A
“Standing by the decision”; a principle stating that ruling made in higher courts are binding precedent for lower courts
13
Q
what is restatement of law
A
Summaries of common law rules in particular area of the law. Restatements do not carry the weight of law but can be used to guide interpretations of particular cases
14
Q
what is administrative law
A
The collection of rules and decisions made by administrative agencies to fill in particular details missing from the constitution and statutes
15
Q
what is a treaty
A
is a binding agreement between 2 states or international organizations
16
Q
What is natural law
A
describes certain ethical law and principles believed to be morally right and “above” the law devised by human
17
Q
what is legal positivism
A
sees our proper role as obedience to duly authorized law.
18
Q
What is identification with the vulnerable
A
a school of jurisprudence the holds that society should be fair.
Particular attention is therefore paid to the poor, the ill, and the elderly
19
Q
what is legal realism
A
is based on the idea that, when ruling on a case, judges need to consider more than just the law.
Context includes factors such as economic conditions and social conditions
20
Q
what is cost-benefit analysis
A
which all costs and benefits of law are given monetary values
law with the highest ratio of benefits to cost are then preferable to those with lower ratios
21
Q
what is ethics?
A
the study and practice of decisions about what is good or right
22
Q
what is business ethics
A
The use of ethics and ethical principles to solve business dilemmas.
23
Q
what is ethical dilemma
A
A question about how one should behave that requires one to reflect on the advantages and disadvantages of the optional choices for various stakeholders.
-problem about what a firm ought to do for which no clear, right decision is available
24
Q
what is social responsibility of business
A
The expectations that a community places on the actions of firms inside that community’s borders.
25
what is WH approach (to ethical decision making)
A set of ethical guidelines that urges us to consider whom an action affects, the purpose of the action, and how we view its morality
who and how
26
what is ethical guidelines
A simple tool to help determine whether an action is moral.
27
what is values
positive abstractions that capture our sense of what is good and desirable
28
W-Who (stakeholders)
Customers
Owners or investors
Management
Employees
Community
Future Generations
29
H-How (guidelines)
Public Disclosure
Universalization
Golden Rule
30
stakeholders
many groups of people affected by firm's decisions
31
what is golden rule?
*Do to others as you want them to gratify you
*Be considerate of others feelings as you want them to be considerate of yours
*Treat others as persons of rational dignity like you
*Extend brotherly or sisterly love to others, as you would want them to do to you
*Treat others according to moral insight, as you would have others treat you
*Do to others as God wants you do to them
32
what is pubic disclosure test
the thinking that what we do is under observation from the community
Don't do anything that you would not want to read about on the front page of the newspaper
33
what is universalization test
The ethical guideline that urges us to consider, before we act, what the world would be like if everyone acted in this way.
34
what is business law
a group of rules enacted by a legislative body to set the minimal standards of conduct
35
how is business law and business ethics related?
Businesses must be at very least able to abide by business law but Business ethics are decisions made by businesses that set standards higher than those prescribed by law
36
W(WH approach)
who the decision affects
37
H(WH approach)
how those people are affected
38
what is a tort?
a civil wrong or injury to another, other than breach of contract, giving the injured party the right to bring a lawsuit against the wrongdoer to recover compensation for economic and/or physical damages
39
what is the goals of tort laws
provide compensation for an injured party
Maintain order in society by discouraging retaliation by injured parties
Give citizens a sense that they live in a justice society
40
what is intentional torts?
occur when defendant takes action intending that certain consequences will result, or knowing they are likely to result
41
what is assault
a situation when one person places another in fear/apprehension of immediate offensive bodily contact
42
what is battery
an intentional, unwanted, offensive bodily contact
43
what is defamation
the intentional publication (communication to a third party) of a false statement harmful to an individual's reputation
44
what is libel
it is written defamation
45
what is slander
it is spoken defamation
46
what is trespass to reality
Occurs when a person (must cause some kind of loss):
Enters the land of another w/o permission
Causes an object to be placed on the land of another without the owner's permission
Stays on the land of another when the owner tells them to leave
Refuses to remove something they placed in the property that the landowner asked to be removed
47
what is private nuisance
a situation when a person uses their property in an unreasonable manner that harms a neighbor's use of enjoyment of another's property
48
what is trespass to personal property
a temporary exercise of control over another's personal property, or interference with the true owner's right to use their property.
49
what is conversion
a situation that occurs when a person permanently removes personal property from the owner's possession/control
50
what is disparagement
a false statement of material fact resulting in damage to a business's or product's reputation
51
what is intentional interference with contract
Knowingly/intentionally and successfully taking action for the purpose of enticing a third party to breach a valid contract with the plaintiff
52
what is unfair competition
against economic interests when the defendant unreasonably interferes with the plaintiff's opportunity to earn a profit
53
what is fraudulent misrepresentation
The defendant knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions;
The defendant intended to have another party rely on the misrepresentation;
The plaintiff reasonably relied on the misrepresentation; and
The plaintiff suffered damages because of reliance on the misrepresentation
In the tort context.
54
what is negligent tort
occur when defendant acts in a careless way that subjects other people to an unreasonable risk of harm
55
what is negligence
the failure to exercise reasonable care to protect another's person or property, causing an unreasonable risk of harm to others.
56
what are the elements of negligence
Duty (aka reasonableness)
Breach of Duty
Causation (Actual and Proximate)
Damages
57
what is res lpsa loquitur
(The thing speaks for itself): when you can't prove definitively how you were injured and don't know who to sue, but what happened to you was so ridiculous you can point the finger at someone.
58
what is negligence per se
"negligence in or of itself": applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs
59
what is contributory negligence
In states where contributing negligence is allowed as a defense, the defendant can avoid all liability by proving the plaintiff's negligence contributed in some way to the accident in question
60
what is competitive negligence
most states have adopted these statutes in an effort to mode fairly allocate responsibility for an accident. Some states follow pure comparative negligence, while others follow a modified version
61
what is assumption of the risk
a defense whereby the defendant must prove that the plaintiff voluntarily assumed the risk of the actual harm the plaintiff incurred
62
what is superseding cause
a defense when something that happens after an accident that makes the injury worse.
63
what is a strict liability tort
occur when defendant undertakes an "inherently dangerous" action (an action that cannot be understated safely, no matter what precautions the defendant takes)
64
what are compensatory damages
designed to compensate the victim
65
what are nominal damages
small amount of money to recognize the defendant committed a Tort, in a case where plaintiff did not experience, or failed to prove, actual damages
66
what are punitive damages
imposed to punish the defendant for extremely outrageous conduct, and to deter the defendant and others from committing similar future offenses
67
what is original jurisdiction
The power to hear and decide cases when they first enter the legal system
68
what is appellate jurisdiction
The power to review previous judicial decisions to determine if trial courts erred in their decisions
69
what is litigation
resolving a dispute in court
70
what is civil
Plaintiff v. Defendant, plaintiff is the one suing
71
what is criminal
State v. Defendant, "prosecutions"
72
what is subject matter jurisdiction
The power to hear certain kinds of cases
73
what is personal jurisdiction
the court's jurisdiction over the parties of the lawsuit
74
what is in rem (over the property)
power to render a decision over an item of property
75
Subject-Matter Jurisdiction: Exclusive Federal Jurisdiction
Bankruptcy cases
Claims against the United States
Other claims involving federal statutes that specify exclusive federal jurisdiction
Includes many patent, trademark and copyright cases
76
Subject-Matter Jurisdiction: State Jurisdiction
State courts have a broad range of cases they can hear.
They hear all cases not falling under Exclusive Federal Jurisdiction.
Most cases will fall under state court jurisdiction.
77
Subject-Matter Jurisdiction: Concurrent Federal and State Jurisdiction
Occurs when both the state and federal system have jurisdiction over a case.
Federal question cases
Diversity of citizenship cases
78
context of personal jurisdiction
Limited based on geography so courts are not unfairly extending their reach to out of state residents
Where do corporations or other entities “reside”?
Where incorporated
Principal place of business – “nerve center”
Where conducting business
“Long arm statutes”
79
Venue and miscellaneous
Venue –The geographical location where a case should be heard within an appropriate jurisdiction - usually where the parties reside or where the case allegedly arose – may be more specific than just “Virginia” for example
Forum Selection Clauses
Choice of Law provisions
Res Judicata – civil law version of no “double jeopardy”
80
what's a plaintiff
party initiating a civil lawsuit.
81
whats a defendant
party against whom a lawsuit has been initiated.
82
what is questions of fact
issues about an event or circumstance in a case - resolved by trial courts – by either a jury (if present) and/or judge
83
what is questions of law
are issues concerning the interpretation or application of the law -may be resolved by trial and appellate courts – by judges only
84
what is a complaint
- pleading setting forth the factual background, legal theories and relief sought by the plaintiff in his or her case – filed with the court
85
what is a summons
document notifying the defendant via “service of process”.of the case and explaining how and when to respond. “Entities typically “served” via “registered agent”
86
what is class action
are a way of aggregating claims by multiple plaintiffs that are substantially similar and arise out of the same facts and circumstances
87
what are the threshold requirements of litigation
Standing (to sue)
Actual/imminent injury in fact
Injury traceable to actions of the
defendant
Injury redressed by a favorable
decision
Case or Controversy (Justifiable Controversy)
Adverse relationship between
plaintiff and defendant
Actions of one party give rise to legal
dispute
Court decision able to resolve
dispute
*Some alternatives - IRS Private letter rulings; SEC No-Action letters*
Ripeness
Decision able to affect parties immediately
88
steps in civil litigation:the pretrial litigations: the pretrial stage
Informal Negotiations
Pleadings (Complaint)
Service of Process
Defendant’s Response / Answer
Pretrial Motions - Motion to dismiss for failure to state a claim; Motion for judgment on the pleadings; Motion for summary judgment
Discovery - the exchange of relevant documents and evidence by the parties - include interrogatories, requests to produce documents and depositions
Pretrial Conference
89
primary forms f alternative dispute resolutions
Negotiation
Mediation
Arbitration
Sometimes contractual provisions will require a staged process - Mediation-Arbitration (“Med-Arb”) for example
90
why would a business prefer alternative disputes resolutions vs litigation
ADR methods are generally faster and less expensive than litigation
Business may wish to avoid uncertainty associated with a jury decision
Business may wish to avoid setting precedent through court decision
Business may prefer confidential nature of ADR
Compared to litigation, ADR might better allow parties to preserve business relationship
91
what is real property
Land and everything permanently attached to it
Multiple distinctive rights (own, lease, use, etc. -“bundle of sticks”)
The public also has certain sticks – ability to take, regulate, tax, etc.
Fixtures - originally a piece of personal property but becomes real property because it is attached to the property
92
what is the extent of land ownership
Surface Rights
Airspace
Water Rights
Mineral Rights (Subsurface Rights)
93
interest in real property
Includes ownership and possessory interests
Typically transferred by a “Deed” recorded in the local land records available for review by the public
Co-ownership arrangements include joint tenancy and tenancy in common
Tenancy in common for businesses
94
interest in real property (CONT.)
Possessory Interest:
Leasehold Interest: Right to possess (but not own) property for a stipulated period of time – typically by a “lease”
Subleasing – Tenant further leases the property to someone else – tenant is still liable under original lease
95
interest in real property (CONT.)
Nonpossessory Interests
Easements: right to use or cross some part of another’s land for a specific purpose, without taking anything from the land
-Example: Utility easement
Profits interest: Right to enter another’s land and take part of the land, or take away a product of it
-Example: Right to harvest timber
License: A right to use another’s property that may be similar to an easement but is generally more temporary and not recorded in the land records - temporary signage or short term sales efforts for example
96
land records; due diligence
Deeds, Easements and various other contracts granting rights to real property are recorded in local land records
“Run with the land” concept
Emphasis on the land versus the owner
How do you know what you are acquiring?
Title Insurance Policy
ALTA Survey
97
Types of Involuntary Transfers:
Adverse Possession: When person openly treats real property as his/her own, without protest/permission from real owner, for statutorily-established period of time, ownership is automatically vested in that person
Condemnation: Process taking private property for “public use” for “just compensation”
Exercised by gov’t entities and certain private companies operating to benefit the public
Exercised through power of “eminent domain”
Kelo v. City of New London, Connecticut
98
personal property
Definition: Generally all property that is not real property (i.e., not land or property permanently affixed to land)
Types:
Tangible: Typical stuff – movable equipment, tools, furniture, vehicles, etc.
Certificates of title for vehicles, boats and airplanes
Intangible: Examples include stocks, contracts, life insurance policies, etc.
Intellectual property” (the “fruits of one’s mind”) - often treated as a separate category
99
intellectual property
Property that comes from creativity
Types of Intellectual Property / Protections
Patents
Trade Secrets
Trademarks
Copyrights
Remedies for infringement:
Money Damages
Injunction (stop someone from using)
100
what is patents
Protects a product, process, invention, machine, etc. that is (1) novel, (2) useful, and (3) non-obvious.
Patent holders often license rights and receive royalties (payments received for each use)
Some anti-competitive uses can be illegal – for example, certain tying arrangements where a license is granted only if licensee also buys a non-patented product
101
what are trade secrets
a process, product, method of operation, or compilation of information that provides a competitive advantage in business.
Can include financial information, customer lists, recipes (Coke) etc. if kept secret
Generally must show that defendant acquired the trade secret through unlawful means and used it without the owner’s permission for a viable claim
Reverse engineering or learning through observation, etc. is not an unlawful means
102
what is trademarks
Trademark - A distinctive mark, logo, word, design, picture, or arrangement used by seller in conjunction with a product and tending to cause consumer to identify product with producer
Common law and statutory protection for intrastate rights
Register with U.S. Patent and Trademark Office and periodically renew and defend for interstate protection
103
whats is copyright
Protects the expression of a creative idea
Certain common law rights as soon as expressed in tangible form, but greater protection and ability to sue for damages if filed with US Copyright Office
Examples include books, songs, motion pictures, lectures, works of art, computer programs, etc.
“Fair use doctrine” allows for limited use for news reporting, comments / criticism, teaching, etc.
