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Business Law Final E
| Question | Answer |
|---|---|
| Law | Body of rules of action or conduct presented by a controlling authority |
| Purpose of law | 1. Protect rights: promote equality 2. Keeping order: laws as a society 3. Prevent chaos: law and order 4. Honor expectations: contracts, landlord 5. Influencing conduct: disclosure statutes, anti-trust, negligence |
| Public Law | Everyone has to obey, enacted by a governing body - Federal securities laws passed by Congress and enacted by President |
| Private Law | Law that is engaged between two individuals, has a binding force, needs to abide by the public law (individual lease agreements, contract not to compete) |
| Criminal Law | Wrongs against society. The plantiff brings the complaint, government/prosecutor makes a decision about burden of proof. Complaint against the individual by society. Burden of proof: beyond a reasonable doubt (90%), can lose liberty |
| Civil Law | Wrongs against individuals. The individual makes the decision about the burden of proof against the wrongdoer. Burden of proof: preponderance of the evidence (50% + 1), balancing the probabilities. Only can lose money |
| Clearing and Convincing Evidence | Utilized in procedures, malpractice, negligence, law degrees, professional licenses, cheaters in school |
| Substantive Law | Law that gives people rights (what you can/can't do), passed by a governing body, depicting people's rights, can be both public and private |
| Procedural Law | Means or procedures for enforcing substantive laws. Ex.) Due Process, Miranda Rights (remain silent, 5th A), providing with a summons, complaint |
| Commons Law | Court decision law - created in the judicial system, case law. Precedence or stare decisis (let the decision stand) |
| Statutory Law | Codified by a legislative body, passed by a governing body |
| Law vs. Equity | Legal - money. Money - injunctions. One part is forced not to do something. Cases are heard by all judges. No separation between law and equity. |
| State Constitutions | Establish state government structure, additional individual rights Pension Funds. Legislative State Codes (sub branch). State Adiministrative Law (sub branch of legis state codes). Local Laws - ordinances. Private Laws - contracts between private parties |
| Congressional Law | Articles I, II, III - sets up Congress (legislative), Presidency (executive), Judicial. Congress - Senate and HOR - can set up law in view of the constitution USC - US Code Citation. Regulatory Agencies - (sub branch). Executive Orders - President. |
| Juducial System | Article III. Trial courts (on the bottom). Federal District courts (trial) > US Court of Appeals (13) > US Supreme Court. STATE: General trial courts > State Court of Appeals > State Supreme Court > US Supreme Court. |
| Panel Judge Actions | 1. Affirm the trial court below - stands 2. Reverse the lower court - opposite 3. Remand the lower court - send it back to lower court 4. Modify the lower court - change ruling of lower court |
| Reversible Error | Lower court may have refused evidence to be admitted that should have been admitted. Refusal to allow particular witnesses. Misapplication of the law - judge at trial level didn't understand law that he or she was applying. |
| Doctrine of Stare Decises | Once a precedence is established, other courts have to follow the decision of the court that originally made the decision. Appellate courts write opinions. Once it's reviewed, it becomes case/common law. |
| When a precedent is not followed | 1. Cases are factually "distinguishable" - sometimes circumstances involving facts differ 2. Sociological, moral or economic changes 3. Changes in technology 4. Precedent is from another jurisdiction or a lower court |
| Parties in a case/law suit | 1. Plantiff - initiates lawsuit (petitioner) 2. Defendant - respondent 3. Attorney - fiduciary relationship with plantiff and defendant 4. Judges - control proceedings and outcome |
| Appeals Process | 1. Individual who appeals the lower courts decision becomes the appellant, and that person then becomes the petitioner (loser) 2. Appelle - respondent (winner) 3. Plantiff first (vs.) devendant second 4. At appellate the order can flip |
| Subject Matter Jurisdiction | When a court has authority over the content of a case. State courts: unlimited SMJ Federal courts: limited SMJ - 1. When there is a federal question 2. Diversity of citizenship - conflict between states (Damages of $75,000 or more) 3. When US is a party |
| Writ of Certiorari | 4 Sumpreme Court Justices must agree that they will hear a case (granted when there is a conflict among circuits, major constitutional issue, enemy combatant, settle laws. |
| Venue | Location of a court in a system within a jurisdiction (usually in criminal courts, in Bussiness - DL, pro-established case law) |
| In Personem Jurisdiction of the Courts | When a court has a power of you - to hail you in court: 1. Presence in the state (residence or do business in the state) 2. In Rem Jurisdiction - if you own property within the state 3. Volunteer Jurisdiction 4. Minimum contracts 5. Long-arm statues |
| Article III, Section III: Only time you can gain access to US Supreme Court | 1. State vs. State 2. Trial of ambassadors and foreign consuls 3. Appellate Process |
| Bill of Rights: 1-4 Amendments | 1. Freedom of speech, press, religion, assembly, petition government 2. Bear arms and maintain militia 3. Protection from quartering troops (troops who forcibly occupy someone's home) - property rights 4. Protection from unreasonalbe search and seizure |
| Bill of Rights: 5-6 Amendments | 5. Right to Due Process (right to have a trial), Double Jeopardy (if acquitted, you can't be tried for the same crime twice), Self-incrimation (don't have to say something that might incriminate you) 6. Right to speedy and public trial |
| Bill of Rights: 7-10 & 14 Amendments | 7. Right of trial by jury in civil cases 8. Freedom from excessive bail, cruel and unusual punishments 9. Other rights of the people 10. Powers reserved to the states - not explicit then goes to states to decide 14. Equal Protection Clause |
| Inalienable Rights vs. Alienable Rights | Natural inherent rights (life) vs. rights given up when government is formed |
| Article 1, Section 8, Clause 3 - Commerce Clause | The Federal government has the power to regulate commerce with foreign nations, and among several states (interstate commerce), and with Indian tribes |
| Dormant Commerce Clause | Even if there is no law, if it's interstate commerce, the states don't have the power to regulate |
| Right to privacy | Penumbras - look at meaning on outside of actual words. 4th, 9th, and 14th Amendments don't directly articulate it, but imply it |
| Ethical Relativism | Decisions based on relativity of that country. Laws and culture within that country |
| Ethical Absolutism | Single moral standard applied irrespective of country or jurisdiction you're doing business in. Applied to all countries - universal. |
| Ethics: Blanchard and Peale | 1. Is it legal? 2. Is it balanced? - how is it going to impact all parties involved? 3. How does it make me feel? |
| Ethics: The Front page of the newspaper test | How a reporter would describe a decision on the front page of a local or national newspaper. ~By Warren Buffet |
| Ethics: Laura Nash and Perspective | 1. "How would I view the issue if I stood on the other side of the fence?" 2. Am I able to discuss my decision with family, friends, and those closest to me? 3. What am I trying to accomplish with my decision? 4. Will I feel good about it over time? |
| Ethics: Wall Street Journal Model | Compliance, contribution, consequences. 1. Are you in compliance with the law? 2. Evaluate the decision's contributions to shareholders, employees, community and customers 3. Envision consequences of decision. |
| Ethics: Kant | Kant's Golden Rule: Do unto others as you would have them do unto you. |
| Tort | A civil wrong against someone |
| Negligence | Accidental harm that results from failure to think through the consequences of actions. Still have liability, there are defenses that you can argue. |
| Assault | Reasonable apprehension of immediate battery |
| Battery | Harmful or offensive contact judged by a reasonable person's standard. Pleading to sexual harassment. Spitting. |
| False Imprisonment | Shop lifting cases |
| Defamation | Slander: talk to blogs. References: time period and title when left |
| Intentional Infliction of Emotional Distress | Ex.) Against debt collectors |
| Property Torts | Negligence. Trespassing. |
| Defamation and its Elements | Untrue statement from one party that is publicized (communicated) to a third party. Elements: statement/publication about a business or person's reputation or honesty that is untrue. Damages = injury that results because of it. |
| Slander vs. Libel | Spoken word vs. written word, in some states it includes broadcast |
| Defenses to Defamation | 1. Truth (provable) opinion vs. fact 2. Qualified privilage (for media) as long as it's not published with reckless disregard for the truth 3. Absolute privilage - when it comes to judicial proceedings people must feel comfortable in giving information |
| Defamation Damages | 1. Compensatory - meant to compensate for damages that are lost by the plantiff (dollar amounts to property) 2. Nominal - symbolic in nature 3. Punitive - above and beyond compensatory, meant to punish the defendant |
| HIPAA | Health Insurance Portability and Accountability Act of 1996: need permission from person to give out his/her personal health care information |
| A Prima Facie Case (what constitutes it?) 1-2 | Negligence: 1. You have a duty - obligation to protect another individual against unreasonable risk or injury 2. Breech of that duty - have to prove that there is failure to perform the obligation |
| A Prima Facie Case (what constitutes it?) 3-4 | 3. Causation - by your actions you are the direct cause of the injury. It can be proved: a. Actual Causation - cause in fact, "but for" causation test b. Proximate causation - zone of danger, foresight by one's actions 4.Damages |
| Defenses to Negligence | 1. Assumption of risk - when individual knew of the risk that was being taken 2. Contributory Negligence - plantiff was also negligent 3. Comparative Negligence - comparing fault of both parties (if plantiff is 30% responsible, sentence is reduced) |
| Sole Proprietorship | Business created by an individual/one owner. No shareholders. Single taxation. Unlimited liability. Apply for business permit, Form 1040: Schedule A(itemize), B (reflection of dividend income), C (replects gains and losses of individual proprietorship). |
| Parnership | Voluntary Association of 2+ individuals in a business for profit. Partnership contract/agreement: rights and responsibilities of all owners, formation, operations, and exit strategy. Form 1065. Unlimited liability: personal assets subject to attachment. |
| Uniform Partnership Act | Most states have have filed it: recommendation of underlying state statues that can or cannot be accepted by an individual state. It promotes conformity amongst states. |
| Partners' Rights | 1. Rights in specific parnership property 2. Partners' interest in parnership (right to profit) 3. Right to participate in management |
| Corporation | Pull together equity by sales of ownership of shares. Double taxation: corporation and individual income is taxed. Form 1120. Corporation as an entity has to pay taxes (35%). Dividend - reported on Schedule B (Ind 1040). |
| Corporation (continued) | Legal existance - corps can hold title to property, sue, or be sued. Limited liability: shareholders enjoy it. Free transferability of interest. Centralized mgmt under broad structure. Unlimited duration. |
| Partnership by Estoppel | Others are relying on you, acting as though you are a partner, therefore you are an estoppel, denying that a partnership does not exist. When someone allows the inference for your name to be known. |
| Articles of Parnership 1-8 | 1. Names of Partners 2. Name of Partnership 3. Nature of Parnership's business (bylaws) 4. Time frame of operation 5. Amount of capital contribution 6. Managing powers of partnership 7. Rights and duties 8. Accounting procedures |
| Articles of Parnership 9-12 | 9. Methods for sharing profits and losses 10. Salaries for partners 11. Causes and methods for dissolution 12. Distribution of property if the partnership is terminated |
| Suggested Articles of Parnership 1-7 | 1. Disability 2. Insurance 3. Divorce 4. Indemnity agreements 5. Non-competing agreements 6. Leaves of absences 7. Anything you want to put up there |
| Limited Partnerships | Limited liabilities for limited partners. Limitations: cannot participate in mgmt(just an investor), can't use your name in the partnership's name. Can only be formed by filing and publishing of a limited partnership certificate. |
| Your Rights in a Limited Partnership | 1. Inspect books and records of the business 2. Can consult 3. Act as a guarantor 4. Vote on amendments, debt assumption, sale of property, disillusion 5. Can be an employee |
| S-Corporation | Much like a normal C corporation. Sub chapter S corp gives its owners a substantial benefit: from taxation standpoint, it's treated as a partnerhip - flow through entity, and corps do not have to pay tax at corp level; |
| Limitations to S-Corporation | 1. Must be a domestic corp 2. Can't have more than 100 shareholders - impairs ability to grow 3. Shareholders must be individuals, estates, or trusts 4. Non-resident aliens can't be shareholders 5. Corps can't have more than 1 class of stock |
| Common Stock | Most basic, voluminous, right to dividends, sometimes to vote |
| Preferred Stock | Stock that has priority for payment of dividends and liquidation of corporate assets |
| Cumulative Preferred Stock | Stock that guarantees certain amount of dividends (by a certain year, if there's a certain amount to be paid out, you get the dividends from all those years) |
| Doctrine for Piercing The Corporate Veil | Separate entities. Aka: Alter Ego Theory - people intermingle their personal assets with corporate assets. Ignore corporate formalities. Insufficient Capital Contributions. Corporation is formed to perpetuate fraud on creditors. |
| Limited Liability Company (LLC) | Entity that combines the best of partnerships and corporations. File articles of organization in order to form. Need to delineate LLC on all info put out to public. Limited liability: members only stand to lose capital contributions. |
| Limited Liability Company (LLC) continued | No stock structure or shareholder limitations. No mgmt restrictions. Members vote (in proportion to respective share of profits). May include partnership or corporation. Flow-through entity (member owners get taxed, members contribute capital). |
| Corporate Opportunity Doctrine | Officers and directors have to give opportunities that come their way as the representatives of the business. Need to present to corporation. Cannot usurp opportunities of the corporation. |
| Business Judgement Rule | Common law, principle that says that duty of care imposed upon members of corporate board that requires adequate review, in terms of arriving at decision. |
| Adequate Review Components (4) | 1. Deliberate during board meetings 2. Hire outside consultants 3. Doesn't require to have full proof of judgement 4. Reasonable care in due diligence to arrive at judgement |
| Employment Discrimination | -Title VII, Civil Rights Act of 1964: protects specific classes of race, color, religion, sex, national origin |
| Title VII, Civil Rights Act of 1964 | Amended to incorporate other acts protecting corps: 1. EEOC of 1972 2. Pregnancy Act of 1975 3. Age Discrimation Act of 1967 (40 up) 4. American Disabilities Act of 1990 5. Family and Medical Care Leave Act (FMLA) of 1990 - 12 weeks |
| Title VII, Civil Rights Act of 1964 - continued | Applies to any employer of 15+ employees. Applies to labor unions of 15+ employees. Employment Agencies. State/local Agencies. Must be involved in interstate commerce. |
| Not covered in Title VII | 1. Members of Congress 2. Indian tribes 3. Federal Government (own laws regarding discrimination) 4. Religious Corporations 5. Employment of aliens outside the US |
| Title VII covers | 1. Hiring 2. Compensation 3. Training 4. Promotion 5. Demotion 6. Transfers 7. Fringe Benefits 8. Rules 9. Working Conditions 10. Dismissals 11. Referrals for employement agencies 12. EVERYTHING... |
| Disparate Treatment | Straight up discrimination when they discriminate against one of the groups in Title VII. Problematic for employers since it's the employer's burden of proof to document why an individual wasn't hired. |
| Disparate Impact | Policy or rule that has an effect on discrimination. Not intentional. |
| Contract | A set of promises for breach of which law gives a remedy |
| Contract Elements | 1. Agreement between parties that requires: a. Offer b. Acceptance of Offer c. Consideration d. Contractual Capacity - parties must have this for the contract to be enforceable against them e. Lawful Object |
| Defenses to Contract lead to Void/Voidable/Unenforcable Contract | 1. Capacity (6 months) 2. Misrepresentation 3. Fraud (intentional use of wrong info) 4. Illegality (against public policy) 5. Duress (when someone asks you to do stuff for them) 6. Undue Influence (taking advantage of someone w/o them realizing the cons) |
| Uniform Commercial Code (UCC) | Governs the sale of goods: natural gas, electricity, software, boats, golf irrigation systems, water, wheat |
| Statues of Fraud | MYLEGS: these contracts have to be in writing M. Marriage Y. Year (greater than 1 year) L. Land E. Executor of an estate G. Goods of $500 or more S. Suretyship - responsible for the debts of another or for the rest |
| Types of Contracts (4) | 1. Bilateral - both parties make promised to each other 2. Unilateral - one party promises something to a party in exchange for performance 3. Expressed - written or oral agreement 4. Implied - non-spoken or non-written agreement |
| Uniform Electronic Transaction Act (UETA) | Brings into line the differing state laws over such areas as retention of paper records (checks, in particular) and the validity of electronic signatures. |
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hmincheva
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