Final Flashcards
Relevant Factors to Selecting a Business Organization
- Nature of Business activity
- Scale of operations
- Capital Requirements
- Cost and Complexity of creating
- Degree of control and management
- Degree of risk and liability
- Tax implications
- Ongoing administration costs
- Continuity or stability of organization
- Flexibility of administration and future needs
Key Characteristics of Different Forms of Organizations
Sole-Proprietorship; S-Corporations
– Predominant for small trading businesses, professions
and personal service (retail stores, restaurants,
specialty shops, small scale manufacturing)
Partnerships
– Finance, insurance and real estate business; medium scale manufacturing, service enterprises (hotels)
Corporations; LLCs
– Manufacturing, large chain stores, engineering companies
Importance of Partnership and Shareholder Agreements
Ensuring that everyone involved is treated fairly
Basics of Product Liability Law
Physical harm caused by a product, protect the user from the unreasonably dangerous product or from one fraught with unexpected dangers
Claims Based on Design
Unreasonably dangerous
Warning
Product label must make apparent the potential harmful consequences
Warning should be ofsufficient intensity as to cause a reasonable man to exercise for his own safety caution commensurate with the potential danger
Manufacturing Defects
Strict Liability
Defenses to Product Liability Claims
Incapable of being made safe when manufactured, sold, handled and packaged properly
Misuse of Product
Comparative Fault
Assumption of Risk
Modification of Product after manufacture
Product sold in compliance with regs
State of art – no better design
Statute of Limitations (gen 10 years)
Express Warranty
Oral or written statement/promise about quality/performance of a good
Implied Warranty of Merchantability
Good is fit for ordinary purpose for which it would be used
Implied Warranty of Fitness for a Particular Purpose
Seller knows the particular purpose for which a buyer will use the goods and that the buyer is relying on the skill and judgment of the seller to select suitable goods
Condition of Premises
How a property should be used
Actions by Others on Premises
Property owner responsible if visitor does not use reasonable care
Respondeat Superior
An employer is responsible for the actions of the employee while the employee is acting within the scope of their job
Negligent Hiring
When an employer should have known the risk/potential to cause harm of the person they employed, not taking the step to mitigate that risk
Disparate Treatment
Direct discrimination and actions, unequal and intentional, prejudiced
Disparate Impact
Indirect discriminations, unintentional, neutral
Bona Fide Occupational Qualification
Legal disparate discrimination, when it is reasonably necessary for a person to have a certain skill set/sex/race to perform a certain job
Sexual Harassment
Unwelcome conduct of a sexual nature or based on sex/gender so severe that it affects the terms and conditions of employment
Personal Jurisdiction
A court’s authority to render a binding decision on the parties
In personam: person/business
In rem: property
Where does Personal Jurisdiction Apply?
Person or business…
Resides in state
Does business in state
Causes personal injury/property damage in state
Owns property in state
Has contracted to supply goods/services in the state
Subject Matter Jurisdiction
Authority to hear the type of dispute between two parties
Standing
Plaintiff must have a sufficient stake in the matter to justify seeking relief (Harm, Causation, Remedy)
Federal Jurisdiction Requirements
Federal Question
US is a Party
Diversity of Citizenship
Dormant Commerce Clause
States can’t favor in-state commerce
States can’t impose unjustified burdens on the flow of interstate commerce
Commerce Clause
Congress has the power to regulate commerce between two states
Administrative Agency Purpose
Set/maintain standards
Inspect/regulate
Carry our functions
Administrative Agency Authority
Rulemaking (Legislative, Judicial, Executive)
Rule Making Process
– Congress passes Enabling Act
– Agency researches a problem
– Agency proposes regulations
– Public comment period for proposed regulations
– Hearing
– Action on rules is taken
Judicial Review of Rules Formed by Administrative Agencies
Limited
Criminal Law
Public wrong, obligation to society, focus on the offender
Private Law
Contract/Tort Law
Tort Law
Private wrong, obligation to an individual, focus on the individual that suffered
Substantive Law
Laws that mandate conduct, the means and methods by which procedural law is enforced
Procedural Law
Laws that are concerned with due process of law (filing deadlines/discovery practices)
Common Law
Based on judicial decisions
Statutory Law
Based on current statutes (written laws)
Legal v. Equitable Remedies
Legal: usually monetary compensation
Equitable: specific performance and injunction
Sources of Law
Constitution, Local Laws, Statutes, Regulations, Executive order, Treaties
Precedent
Binding Agreement
Court must follow
Guiding principles for deciding future cases involving similar principles
Stare Decisis
Let the decision stand
Should not overturn precedent unless there is a compelling reason to do so
Higher court decisions are binding on lower courts
(May not apply: keep up with national progress, account for technological advances, bestow more individual civil rights, reflect the tide of social opinion)
IRAC
Issue, Rule, Application, Conclusion
Plea Bargain
Defendant pleads guilty in return for a lesser sentence or other concessions
Immunity
Exempts a person from liability, punishment, or other legal actions
Unenforceable Agreement
Otherwise valid, but due to a technical formality remains unenforceable
