Exam 1 Halpern Slides Terms Flashcards
business law
enforceable set of rules of conduct that govern commercial relationships (actions of buyers and sellers in exchanges)
Functional Areas Affected by Business Law
- Marketing
- R & D
- Accounting and Finance
- HR
- Production
- Transportation
- Management
Private Law
Disputes between private individuals or groups
Public Law
Disputes between a private entity (individual or group) and THEIR government
Civil Law
Rights and responsibilities between persons OR persons and their government
Criminal Law
Incidents where someone commits an act against the public as a whole
Sources for BLaw
Constitutions
Statutes
Cases
Administrative Law
Treaties
Exec. Orders
Identification with the Vulnerable
A school of legal interpretation
Connected to the pursuit of fairness in our society
Think of looking out for the poor, elderly, disabled
Historical School
Past practice is assumed to have been the product of careful thought
Stare decisis and originalism are used here
Stare Decisis
Standing by decision (rulings made in a higher court are binding precedents for a lower court)
Originalism
The idea that texts should be interpreted according to their “original meanings”
Legal Realism
A school of legal thought
Idea that the more than the law is to be considered when ruling a case
Typically more progressive, acknowledging the fact we are in an ever-changing society
Cost-Benefit Analysis
Examine all the costs and benefits for alternative laws or decisions and place monetary values on those costs and benefits
Ethics
Study of decisions, evaluating what is good or right
Hypothetical School of Interpretation
Deals with claims of things such as discrimination denying a promotion
Business Ethics
Application of ethics to scenarios involving businesspeople
Social Responsibility of Business
The expectations of the community for a firm doing business in the community
Ethical Dilemma
When a firm has a situation in which there is no clear/correct decision to make
Business Ethics
Refers to the standards of business conduct
Does not result in a set of correct decisions
Morals
Performance expectations a culture has at any time for business behavior
Ethics (when compared to morals)
MORE complicated set of expectations because it is about what morals SHOULD be
Legality is _____
the minimum standard that must be met when moving forward with a business decision (just because something is legal, does not mean it is good)
Values
Starting point for business ethics
values underlie conversations about business ethics
We derive our ethics from the interplay of values
Values that influence Business Ethics
Freedom
Security
Justice
Efficiency
Freedom as a Value
Acting without restriction
Possessing the capacity or resources to act as one wishes
Security as a Value
Possess a large enough supply for basic needs
Safety from those who want to interfere with our property rights
Justice as a value
To receive the products of our labor
Provide resources in proportion to need
Treat all equally
Efficiency as a value
Maximize wealth in society
Minimizing costs
Highest net income from an output
WH Process of Ethical Decision making
W- who are the stake holders
H- how should the decision be made
Who are the stakeholders in ethical decision making?
Customers
investors
management
employees
community
Future generations
How should a decision be made in ethical decision-making?
Public disclosure
Universalization
Golden rule
Golden rule
treat others the way you want to be treated
Public Disclosure test
think about the reaction if the headlines were our decision
Universalization Test
What would happen if everyone copied our action?
Trial Courts
Hold original jurisdiction, the power to hear and decide cases when they FIRST enter the legal system
Appellate Courts
Can review previous judicial decisions
Do NOT hold trials, they review transcripts of previous proceedings
Question of Law
When an issue is surrounding how the law is being applied or viewed
Appellate courts ONLY handle this
ONLY judges can decide a question of law
Question of Fact
Questions about a specific thing to the case (event, characteristic, party involved, etc.)
Trial courts determine these
Bench trial = judge decides it
Jury trial = jury decides questions of fact
Types of jurisdiction
Original
Appellate
In personam
Subject-Matter
Original jurisdiction
Power to hear and decide cases when they first enter the legal system
Appellate jurisdiction
power to review PREVIOUS judicial decisions to determine whether trial courts had an error in their decision
In personam jurisdiction
The power to render a decision affecting the rights of specific persons before the court
Extends over a specific geographic region
Subject-matter jurisdiction
The power to hear certain kinds of cases
Corporations subject to in personam jurisdiction where?
- State of incorporation
- Location of main offices
- Areas where they conduct business
Long-Arm Statutes
Most states have these, basically means that they maintain in personam jurisdiction if someone tries to flee
Exclusive Federal Jurisdiction covers
Admiralty
Bankruptcy
Federal criminal prosecutions
state sues a state
claims against the US
patent and copyright
Subject-matter jurisdiction: states
Hear all cases NOT under exclusive federal jurisdiction
Concurrent Federal and State Jurisdiction, what causes this?
Federal question cases (interpretation of Constitution, statute, or treaty)
Diversity of citizenship cases
Diversity of Citizenship cases must
Plaintiff does NOT reside in the same state as the defendant
Controversy concerns over $75k
Use the location of a party’s residence to determine if this exists. For businesses it uses incorporation or main business place
Jurisdiction
the power of a court to hear a case and render decisions that bind the parties before them
Venue
the MOST appropriate geographical location where a case should be heard
typically where the parties reside, or where the case began
Plaintiff choices for venue
- Trial court in defendant’s county
- If property is involved, it is where the property is
- Specific incident, use the place where the incident was
US Court System
Supreme Court = 9 justices
Intermediate courts of appeal (11 numbered circuits in the U.S., Texas is 5)
Federal Trial Courts (94)
State Court Systems
Replicate the US version, just state edition
Threshold for Litigation
Must be standing to sue (can trace an action to the defendant that harmed plaintiff)
Case or Controversy (actions of one party give rise to the legal dispute)
Ripeness (decision is able to affect the parties immediately)
Jury Selection
AKA “voir dire”
Make sure jurors can be unbiased
Peremptory challenge = challenge a juror without a reasaon
Examination of Witnesses
Plaintiff has the burden of proving the case, presents first
All examinations (direct, cross, redirect, re-cross)
Leading questions (attorneys can ask on a cross-exam), basically forcing an answer
Discovery
Occurs after the pleadings
Exchange of relevant documents and evidence amongst the parties
Can interrogate, request to produce documents, and request admission of facts
Appeals…
Prejudicial error of law MUST exist to successfully appeal
Appeals are only on the record, there is no additional evidence they can consider
Typically, only one appeal to an intermediate court of appeal is allowed
Available decisions to an Appellate Court
Affirmation (agree)
Modification (adjust)
Reversal (change to favor other party)
Remand (return the case to re-do it)
Alternative Dispute Resolution (ADR)
Resolution of legal disputes through methods other than litigation
Examples of ADR
Negotiation
Mediation
Arbitration
Summary Jury Trials
Mini-trials
neutral case evaluations
private trials
Why ADR?
Quicker and cheaper
More control over the outcome, avoid the uncertainty
Do not want precedent
Privacy (businesses like this)
Preserve a relationship
Negotiation (ADR)
Bargaining process in which the parties try to solve things informally (don’t NEED lawyers). No need for a 3rd party
Mediation
Voluntarily select a neutral party (typically someone very knowledgeable in the area) and have them try to facilitate the discussion and offer potential solutions
everything remains confidential
Arbitration
Resolved by a neutral 3rd party, non-judicial
Parties agree to go to arbitration
Has a hearing like a trial
Arbitrator’s decision is LEGALLY BINDING
Arbitrator is more active than a judge, no record of hearing is kept
Arbitrator’s Award
Provided within 30 days of the hearing
The decision is called an award
Do not need to offer any reasoning, not bound by precedent
Legally binding
Advantages of Mediation (ADR)
Preserve relationships
Find a new solution not thought of
Those involved have a lot of control
Disadvantages of Mediation (ADR)
Hides power imbalances (the stronger party can’t get the stronger result)
Some use it as a way of delaying things, don’t want a mediation solution
Advantages of Arbitration (ADR)
Quicker and cheaper than litigation
Parties can choose the arbitrator
More flexible decision-making than a judge
Disadvantages of Arbitration (ADR)
Often used, making it less efficient and more expensive
Tough to appeal the award
More severe punishments in litigation
Companies and employers can hide their disputes, good for them, bad for the public
Binding Arbitration Clause
Provision in a contract mandating that any disputes relating to the contract have to be settled by arbitration
Often includes the process of selecting the arbitrator
Med-Arb (ADR)
Mediation-Arbitration
If mediation fails, go to arbitration
Summary Jury Trial
A quick trial with a non-binding verdict. Let the parties see how the case would go. They can choose to accept, reject, or compromise decision
Mini-trial
Neutral third party offers an opinion on what the verdict would be in a trial
Early Neutral Case Evaluation
Parties have a neutral third party, explain their positions, and the third party evaluates each side’s argument to try and reach a settlement
Private trials
Referee selected and paid for by the parties, offering a legally binding judgment
Administrative Law
Consists of substantive and procedural rules created by administrative agencies
Administrative agencies
any governmental body of the city, county, state, or federal government
Administrative Law Judge
Presides over administrative hearing, can try to encouragement a settlement but can render a binding decision
Making an administrative agency
Statute specifies its name, functions, and specific powers.
It grants the agency rulemaking, and investigation of issues under its powers and adjudication of cases arising from its powers and rules.
Rule Making (administrative agency)
Enabling statutes permit agencies to issue rules that control both INDIVIDUALS and BUSINESSES behaviors
Same effect as laws
Investigation (Administrative agency)
Enabling statutes grant executive power to agencies to investigate potential violations of their rules or statutes
Adjudication (administrative agency)
Enabling statutes delegate judicial power to agencies to settle or adjudicate individual disputes that an agency has with businesses or individuals
Subpoena
An order to appear at a particular place and time, to provide testimony
Subpoena duces tecum
An order to appear AND bring specified documents
Who presides over an administrative agency hearing?
Administrative Law Judge (ALJ)
Consent Order
ALJ tries to convince parties to reach a settlement through this
A statement in which a company agrees to stop the disputed behavior, but does NOT admit that it broke the law
Order (Adjudication)
ALJ can render a binding decision, aka an order
Elements of a Crime
Must be a guilty act in the wrong state of mind
Actus Reus
Wrongful behavior (guilty act)
Mens Rea
In the wrong state of mind (bad intent, knowledge, etc)
Felony
Serious crime, imprisonment for more than a year, or death penalty
Misdemeanor
A less serious than felony but still a sizable crime
Punishable by a fine and/or imprisonment up to a year
Petty Offenses
Minor misdemeanor punishable by a small fine and/or short sentence
White Collar Crime
NONVIOLENT illegal act against society, typically in business
Examples of white collar crime
bribery
extortion
fraud
embezzlement
computer crimes
Bribery
Offering or receiving money/ an object of value for the purpose of influencing a person in a position of trust
Extortion (blackmail)
Making a THREAT for the purpose of obtaining money or property
Fraud
INTENTIONALLY misrepresents to gain an advantage over another
3 Elements for fraud
A materially false representation, MADE with the intent to deceive someone
Victim reasonably relies on the false representation
Damages occur to the victim
Embezzlement
Wrongful conversion of another’s property by one who is lawfully in possession of that property
Think about a fraternity cabinet dinner (taking people’s dues to fund their own dinner, not an event for the fraternity)
Computer Crime
Any wrongful act that is
direct against computers
made with computers
OR
uses computers to continue criminal activity
Criminal Procedure
Set of rules that govern the adjudication process through which the government enforces substantive criminal law
In Criminal Procedure…
government is prosecutor
objective is punishment (fine/imprisonment)
Many constitutional safeguards for the criminal defendant
Civil procedure
Plaintiff can be an individual, business, or government entity
Objective is to repair the damages to the plaintiff
Tort
A civil wrong or injury to another, giving the injured party the right to bring a lawsuit against the wrongdoer to recover compensation
Intentional Torts
Defendant takes an action INTENDING a specific result, or knowing a result is likely
Negligent Torts
Occurs when the defendant acts in a careless way that subjects other people to an unreasonable risk of harm
Strict Liability Torts
The defendant undertakes an “inherently dangerous action” in which no one can complete this action safely regardless of any precautions that could be taken
Intentional Torts
It is assumed that people intend the “normal consequences” of their actions
throwing a rock at a group of people, it is assumed that you intended to hit someone
Types of intentional torts
Assault
Battery
Defamation
Assault
One person places another in fear/apprehension of immediate, offensive and/or harmful bodily contact
must feel the fear and that feeling must be reasonable
Battery
Intentional unwanted bodily contact
Defenses available to the defendant in battery
Consent (was it given?)
Self-defense (fight w equal force)
Defense of others (fight w equal force)
Defense of property (reasonable force to defend property)
Defamation
Intentional publication of a FALSE statement to harm someone’s reputation
Anyone who republishes/repeats the defamatory statement is liable for defamation. EVEN WHEN CITING SOURCE
Libel
Defamation that is published in a permanent form (magazine, radio, broadcast)
Slander
Oral defamation
Must prove speical damages to recover said damages
Slander Per Se
Exception to requirement of special damages
Statement that is so harmful that damages are presumed
Defenses to Defamation
Truth (bc it true, not false, MUST BE FACT)
Privilege (defendant admits to the accusation, but argues they shouldn’t be liable)
Absolute Privilege
One cannot be sued for defamation for any false statements made regardless of intent or knowledge of the falsity of the claim
happens for those speaking in DC on floor during debates
Conditional Privilege
Party cannot be held liable, unless statement made w actual malice (made knowing it was false, or recklessly disregarding its truth)
Privacy Torts
False light: the publicity of something about a person makes an impression that is not valid
publicizing a private fact that a reasonable person would find highly offensive
Using another person’s likeness for commercial gain without permission
Intrusion on an individual’s affairs or seclusion
Intentional Torts against property
Trespass to Realty
Private Nuisance
Trespass to personal property
conversion
Trespass to realty
enter the land of another without permission
cause an object to be placed on the land of another without permission
stay on the land after being told to leave
refusing to remove something that the landowner asked to have removed
Private Nuisance
Person uses their property in an unreasonable manner harming a neighbor’s use of their property
imagine just blaring speakers
Public Nuisance
Party acts in a way endangering the property/health/safety/welfare of the community (public official must bring these)
Trespass to personal property
Temporary control over another’s personal property, or interfering with their right to use the property
responsible for damages caused to the property as well as the damages caused to the owner related to the trespasser’s wrongful possession of the property
Conversion
Person permanently removes personal property from the owner’s possession and control
true owner can not regain the property anymore
Disparagement
false statement of MATERIAL FACT resulting in a damage to a business’s reputation or a product’s reputation
Intentional Interference With Contract
Defendant knows the contract and its terms
Defendant intentionally tries to cause a breach of contract and injuries result
Unfair Competition
Against economic interests, defendant unreasonably interferes with the plaintiff’s opportunity to earn profit
Working together to drive someone out of business
Elements of Fraudulent Misrepresentation
defendant misrepresents facts/conditions
intent to have another rely on the misrepresentation
plaintiff reasonably relies on the misrepresentation
plaintiff suffered damages from reliance on the misrepresentation
Negligence
Failure to exercise reasonable care to protect another’s person or property, leading to an unreasonable risk of harm to others
Elements of Negligence
Must establish that the defendant owes a duty to the plaintiff (use the “reasonable person standard” for care and skill offered)
Breach of duty
causation (actual v. proximate)
damages must occur
Duty (of a business)
Businesses take care of customers on property, must warn about any risks
Actual Cause
Defendant’s breach of duty resulted in the plaintiff’s injury
Damages would not have occurred without the defendant’s actions
Proximate Cause
Extent to which a defendant can be held liable for the consequences of their actions
Proximate cause is determined by foreseeability (plaintiff and plaintiff’s damages were reasonably foreseeable at the time the defendant breached their duty)
Res Ipsa Loquitur
“the thing speaks for itself”
allows the judge to infer that the defendant’s negligence caused the harm. No direct evidence of lack of due care tho
Negligence Per Se
Negligence In Itself
Defendant violates a statute enacted to try and prevent a certain type of harm
Defendant’s violation causes harm that the statute TRIES to prevent, it is negligence per se
Plaintiff establishes proof of negligence
Defenses to negligence
contributory negligence
comparative negligence
assumption of the risk
superseding cause
contributory negligence
Defendant can avoid ALL liability proving the plaintiff had negligence leading to the damages
To prove contributory negligence…
Must prove plaintiff’s conduct fell below the standard fo care needed to prevent unreasonable risk of harm
The plaintiff’s failure was a contributing cause of the plaintiff’s injury
Last-clear-chance doctrine
Allows the plaintiff to recover damages DESPITE proof of contributory negligence as long as the defendant had the FINAL CLEAR opportunity to avoid the action
Comparative negligence
Used to more fairly allocate responsibility for an accdient
Pure comparative negligence
court determines the % at fault the defendant is, they are then liable for that % of damages
Modified comparative negligence
defendant must be at LEAST 50% at fault for the plaintiff to recover
Assumption of the risk
defendant must prove the plaintiff VOLUNTARILY assumes the risk of the harm that they incurred
How to express assumption of the risk
plaintiff expressly agrees to assume the risk (typically done in a contract)
think ab a waiver before skydiving
implied assumption of the risk
plaintiff implicitly assumed a known risk
Good Samaritan Statutes
does not offer negligence for people trying to voluntarily aid those in serious threat
Superseding Cause
defense when something that happens after an accident makes the injury worse
Strict Liability
Liability WITHOUT fault
Must have serious risk, and can not be done safely at all. Not performed in the immediate community typically
Damages Available in Tort Cases
Compensatory Damages
Nominal Damages
Punitive Damages
Compensatory Damages
designed to compensate the victim for the harm caused
Nominal damages
smal amount of money given to recognize that the tort was committed, but the plaintiff did not experience or could not prove actual damages
Punitive damages
Imposed to punish the defendant for extremely outrageous conduct
deter the defendant and others from committing future offenses that are similar
Intellectual property
property coming from creativity
Types of Intellectual property
trademarks
trade dress
copyrights
patents
trade secrets
trademark
distinctive mark, word, design, picture, or arrangement used by a seller in conjunction with a product
consumer identifies the product with the producer
To use inside a state (intrastate) it is protected under state common law
Interstate use of a trademark
register with the U.S. patent and trademark office
renew it between 5th and 6th year, then renew every 10 years following that
Remedies are money damages and injunction
Trade Dress
Overall appearance and image of a product
same protection as a trademark
The main focus is whether or not confusion in the two products would occur
think ab jack daniels scenario from class w dog toy
Copyright
Protect the expression of a creative idea
Examples: books, periodicals, musical compositions, plays, motion pictures, sound recordings, lectures, works of art, computer programs
Criteria for Copyright
Fixed (tangible medium of expression)
original
creative
Remedies for copyright infringement
Money damages (if the copyrighted work is registered)
Injunction
“Fair Use” Doctrine
portion of copyrighted work that may be reproduced for “criticism, comment, news reporting, teaching, scholarships, and research)
“Fair Use” Factors
Purpose and character of use (good or bad reason to use)
nature of the copyrighted work
amount and substantiality of portion used in relation to the whole copyrighted work
Effect of use on the potential market for the copyrighted work
Patents
Protect a product, process, invention, machine, or plant produced by asexual reproduction
Criteria for a patent
Must be new
must be useful (or a design)
Must be nonobvious
Patent protection
Last 20 years
Gives the EXCLUSIVE right to produce, sell, and use the object of the patent
remedies for patent infringement
money damages
injunction
someone can challenge the patent, asking the USPTO to re-examine it
Tying arrangement (unlawful)
Holder issues a license to use the patented object, only if the licensee agrees to buy a NON-PATENTED product from the holder
Cross-licensing (unlawful)
Two patent holders license each other to use their patents, in the condition no one else gets the license without both consenting
America Invents Act of 2011
Changed the patent system to give a patent to the first to file a patent application (NO LONGER THE FIRST INVENTOR)
Expanded the rules on what is patentable, so it is TOUGHER to get one
Changed the re-examination process to be more like litigation
Prohibits a plaintiff from filing suit against many unrelated defendants, increasing the number of patent infringement cases filed
Made it easier/more affordable for a small business to apply for one
Trade Secret
process/product/operation/information giving a businessperson an advantage over competitors
Protected by the common law from unlawful appropriation by competitors as long as it is kept secret and consists of elements not generally known in the trade
Trade secret versus patent protection
frequently used as an alternative to patents
trade secrets protect the invention in perpetuity, but once someone discovers it lawfully protection is lost
patents give 20 years, then everyone gets it. plus it can be challenged and lost early
Remedies for trade secret infringement
Money damages/injunction
also allows the holder to sue for violation, MUST prove:
trade secret exists
acquired secret through unlawful means
used secret without permission
