Business Law - Exam 1
Terms
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- What the law refers to?
- Rules of conduct which society follows.
- Where America got its law from?
- U.S. adopted England Common Law. Louisiana adopted French Common Law.
- Where America developed its own law?
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American adopt laws through Congress.
Legislature creates codes and status.
Administrative agencies create codes and regulations.
Cities create ordinances.
Judges create case law. - What is Civil Law?
- An individual files action against another individual seeking a remedy of equity or money.
- What is Criminal Law?
- State or federal government brings action against an individual seeking a remedy of punishment.
- History of Civil Law
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Court of Law: the remedy given was monetary recovery.
Court of Equity: the remedy given was non-monetary recovery, injunction, and specific performance.
*only one court - Describe the concept of Stare Decisis
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Let the decision stand.
Courts follow previous case law but if society changes, the law will change. - Define 133 F.3d 433
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133 - volume of the book to find case
F.3d - Federal 3RD editor find the case
433 - page number - What is Plaintiff?
- Plaintiff is the individual who files the law suit.
- What is Defendant?
- The defendant is the party being sued.
- Define of CA Judicial System
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2 trial courts:
Superior Court- Limited
Superior Court- Unlimited
CA Supreme Court
CA Court of Appeals
CA Superior Court Limited/Unlimited - Describe of Superior Court Limited
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Civil up to $25k.
Criminal cases: infractions (fine, traffic ticket, jay walking) and misdemeanors (up to 1 year in jail)
Small claims - How small claims court is unique?
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Civil up to $5K.
No attorney representation.
No jury.
Plaintiff waives right to appeal.
Speedy and inexpensive. - Describe of Superior Court Unlimited
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Civil over $25K.
Criminal cases: felonies (over 1 year in prison)
*** Specialty departments ***
Family Law - dissolution, child support, paternity, child custody, restraining orders, adoptions, alimony.
Probate - wills, trusts, guardianships, conservatorships.
Juvenile - abused, neglected minors, no jury, not open to the public.
Appeals - hear small claims cases in limited.
Writs - handles matters of equity.
Mental Health - committed acts that are incapacitated (harmed). - Define of CA Supreme Court
- Hears appeals from the CA Court of Appeals and hears death penalty.
- Define of CA Court of Appeals
- Judges review case and lawyer's briefs.
- Federal Court System
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U.S. Supreme Court
U.S. Courts of Appeals
U.S. District Courts - Identify Federal Court System
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1. Federal Crimes
2. Federal Questions
3. Immigration
4. Bankruptcy
5. Patent, Copyright, and Trademark
6. Admiralty/Maritime
7. State v. State
8. Diversity of Citizenship (min. $75K)
9. Admin. Agency - EPA, FCC, FDA - Subject Matter Jurisdiction
- Power/ability of a court to hear a case.
- Personal Jurisdiction
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Courts ability to make a decision that affects a party.
1. Resident of a state
2. Doing business within a state
3. Incorporates within a state - What is Venue?
- Location.
- What is Standing to Sue?
- Plaintiff must show defendant caused them harm.
- What are the 2 Alternative Dispute Resolution (ADR)?
- Arbitration and Mediation.
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What is Arbitration?
What is the reasons? -
Independent 3rd party makes a decision about the dispute.
Reasons:
1. Private
2. Less expensive
3. Speedy - What are the 2 types Arbitrations?
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Judicial - not binding decision.
Contractual - binding decision. - What is Judicial Arbitration?
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Judge orders to arbitration. Not binding decision.
Trial de novo - appeal - What is Contractual arbitration?
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Parties agree to arbitrate a dispute.
No right to appeal.
Binding on parties - What is Mediation?
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Independant 3rd party helps the parties resolve a dispute.
*No decision is made in mediation. - 3 different ways to hire an attorney
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1. Contingency Fee - Percentage of recovery and fee contingent upon recovery.
*Personal injury = 25-40%
*Worker's comp = 16-18%
2. Hourly fee - fee charged by the attoney by the hour. $250 is the average.
3. Flat fee - set dollar amount at time of hire representation. -
What does the term statute of limitations refer to?
4 different statute of limitations -
Time period to file a lawsuit.
In CA:
1. Personal injury - 2 years
2. Properly damage - 3 years
3. Breach oral k - 2 years
4. Breach written k - 4 years - What is Complaint?
- First document filed to begin lawsuit.
- What is Summons?
- Order to appear.
- If the defendant receives Complaint and Summon and what the defendant do?
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1. Defendant can file an answer
-admit/deny
2. Defendant can file a Demurrer
- Defective complaint = defendant wants judge to dismiss
3. Defendant can do nothing
- Plaintiff can file a default -
What does the term Discovery refer to?
6 types of Discovery used in Civil cases -
Finding the truth.
1. Interrogatories - written questions that require a written responses under oath.
2. Deposition - oral question/answer period between attorney/witness or party under oath with transcribed by court reporter.
3. Subpoena: order to appear a person or document.
4. Production of Document - order to produce documents requested (medical records, photographs, witness statements).
5. IME (Independant Medical Examination) - defendant's doctor review the plaintiff's injuries.
6. Production of Evidence -
Jury Selection Process
Whose speaking the truth? -
Voir Dire - to speak the truth
The jurors. - What are 2 ways that a juror being questioned may be excused?
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Cause and Preemptory challenge.
1. Cause - shown a prejudice or bias.
***no limit***
2. Peremptory challenge - juror is excused for no reason at all.
***limit*** - Which of those 2 are limited in a number of jurors being excused?
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Cause - no limit
Preemptory challenge - limit determine by judge - What are the civil and criminal cases must agree to vote?
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Civil cases - 9 of 12 must agree
Criminal cases - 12 of 12 must agree - When the trial begins who gives the opening statements first?
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1. Plaintiff -
Diagrams the case to be presented
Defendant can reserve the right
2. Plaintiff calls witnesses -> direct examination
3. Defendant -> cross examination
4. Plaintiff -> re-direct
5. Defendant -> re-cross
6. Plaintiff rests
7. Defendant's withness
8. Defendant rests
9. Closing -> plaintiff, defendant, plaintiff
10. Jury Instructions -> given by the judge - given at the end to allow jurors to listen to all evidence - What does J.N.O.V. stand for?
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Judgment notwithstanding the verdict
Judge throws out the jury's verdict and replaces it with their own. - What is Constitution Law?
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Helps us understand who has the authority to act.
United States government is a government of federalism. - Federalism
- Division of power between state and federal gov't.
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What is Commerce Clause?
What are the 3 examples of Commerce Clause in the book? -
Gives Congress the right to regulate commerce.
**Heart of Alanta Motel v. US: hotel won't let African Americans stay there.
**Wicker v. Filfurn: man used crops to feed his own family did have an impact on interstate commerce because he didnt go out and buy goods.
**US v. Lopez: congress did overstep it's bounds, regulation of guns near schools...does not have an impact on interstate commerce. - What is Supremacy Clause?
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A conflict between state and federal law.
Federal law will take precedence. - What is the first amendment protects 3 areas?
- Speech, Religion and Assembly.
- What areas are we not free to speak?
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Fighting words: Not free to use words that will insight a riot. Individuals may be sued for damages as the result of their words.
Defamation: false statement that harm the reputation of another.
Obscenity: It's not protected. Judge uses community standards. - What 2 clauses come into the first amendment to protect an individual's right and religion?
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Free exercise clause - allows people to practice a religion that they believe.
Anti- establishment clause - prohibits gov't to enforce citizens towards a certain religion. -
What is the 4th amendment?
What is called to search someone's home?
What are the 3 areas for search warrant? -
Freedom from illegal search and seizure.
A search warrant.
1. Place to be searched
2. Things to be seized
3. Probable Case - Name 3 exceptions to search warrant requirements.
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Automobile - police always have right to search for weapons with wingspan entire passenger area.
Emergency situtation
Consent - voluntarily given - What is the 5th Amendment and what is that called?
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Protects persons from having to testify against themselves.
Self incrimination - person charged for a crime does not have to give testimony.
Due Process - Right to be heard before life, liberty and property. 5th and 14th amendments. -
What is a tort?
What are the 3 different areas? -
It's a civil wrong.
1. Intentional
2. Unintentional
3. Strict Liability - What are the 4 names of Intentional Torts --> Person?
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1. Assault - Intent, apprehension/fear of an immediate battery.
2. Battery - Intent, harmful or offensive contact.
3. False Imprisonment - Intent, plaintiff confined without resonable means of escape. Physical or mental confinement.
4. International Infliction of Emotional Distress - Intent, extreme and outrageous conduct in physical signs of emotional distress. -
What are the 2 types of defamations?
What is the difference? -
Slander and Libel.
Libel - anything put into a permanent form.
Slander - spoken/verbal and economic harm.
Unless Slander Per Se:
1. Crime
2. Disease
3. Profession/trade
4. Chastity -
What is Negligence?
Name the elements necessary to prove negligence. -
Someones actions fall below the standard of care.
1. Defendant -> Duty
2. Defendant -> Breach of Duty
3. Defendant -> Cause
4. Plaintiff -> Injuries/Damage - What are the 3 names and defintions of Defenses to Negligence?
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Assumption of the risk - one voluntarily takes on a known risk.
Comparative negligence - both parties are at fault. Recovery is reduced according to the % of fault.
Contributory negligence - both parties are at fault, neither party can recover. - What is Good Samaritan Rule?
- If someone gives aid to another - no liability will result to the rescuer.
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What is Spam in Cyber Torts?
What is the tort that is being committed? -
It's junk email.
Trespass to personal property. - What are the facts of the case and the rule of law for Palsgraf v. Long Island Railorad Co.?
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Facts: A passenger gets on a moving train carrying a box and was helped by 2 employees of the station. 1 on the train pulling him on and the other 1 pushing him onto the moving train, and he dropped the box which caused a great explosion and it caused vibration through the railroad causing him to be injured due to a scale falling down on the head and it was caused by the vibration because it exploded.
Rule: In order to be a foreseeable plaintiff, the plaintiff must be in the zone of danger. - What are the 5 areas law imposes strict liability?
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1. Fire
2. Dog owners
3. Trepassing livestock
4. Hazardous Activity
5. Wild Animals - What are the 3 areas of product liability under warranties?
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1. Express warranty - affirmation of fact as to the description or quality of a product. (Ex: someone goes to a store and buys a can of paint and it says guarantee five years not to peel, and it only last two years.)
2.Implied warranty of merchandtability - all products sold under the UCC and foreseeable misuse. (Ex: someone goes to McDonalds and orders a Big Mac and gets ill.)
3. Implied warranty fit for a particular purpose - buyer relies on the seller's expertise and knowledge when purchasing the items. - What are the facts of the case and the rule of law for Greenman v. Yuba Power Products, Inc.?
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Facts: Greenman’s wife purchased a Shopsmith for her husband and its defective and a piece of wood hits him in the eye. He sued under breach of warranty and negligence.
Rule: The court in this case actually allows strict liability for cause of action for consumers if injured by a defective product. - Name the 3 most common defects under strict liabilities cause of action
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1. Design - all products found to be defective.
2. Warning - inadequate
3. Manufacturing defect
Defendant can be manfacturer, distributor and seller.
Plaintiff can be purchaser, user, or bystander. - What are the facts of the case and the rule of law for Martin v. Abbott Laboratories?
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Fact: DES drug prescribed to many women. Women to whom they were pregnant and children born with birth defects. Some developed cancer.
Rule: Market Share Liability. All manufactures held liable according to their share of market. - What are the 5 Defenses to Product Liability action?
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1. Assumption of the Risk - plaintiff voluntarily assumes the risk.
2. Commonly known dangers (ex. knifes)
3. Product misuse
4. Comparative negligence - both parties at fault
5. Status of Limitations - 2 yrs. from injury. Breach of warranty under UCC is 4 years. -
What is Trademark?
How long is trademark good for? -
Symbol, sign or logo that ID's the manfacturer of product.
Duration is unlimited. - What is trademark infringement?
- In order to seek equity, one must come to court with clean hands - no wrongdoing.
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What is Service Mark?
How long is service mark good for? -
Symbol, sign or logo that ID's a provider of service.
Duration is unlimited. -
What is Trade Dress?
How long is trade dress good for? -
Overall appearance of a product or business.
Duration is unlimited. - What is the rule of law for Coca-Cola v. Koke case?
- Rule: In order to seek equity one must come to court with clean hands - no wrongdoing.
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What is Patent?
How long is Patent good for? -
Registered invention with the federal gov't - new idea.
Patent lasts for 20 years then it becomes public domain. -
What is Copyright?
How long is Copyright good for? -
Artistic or literary expression created by an author.
Lasts for the life of the author plus 70 years. - What is "fair use doctrine" under copyright?
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It's for educational purposes.
It must not be the entire expression created by an author but a portion. -
In order to prove most crimes 2 elements are required.
What are they? -
Corpus delicti - body of the crime.
1. Actus Rea - illegal act.
2. Mens Rea - (wrongful) mental state. - What are the 3 classifications of crimes?
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1. Infraction
2. Misdemeanor
3. Felony - What is infraction?
- Punishable by fine.
- What is misdemeanor?
- Punishable up to one year in jail.
- What is felony?
- Punishable over one year in prison.
- What is robbery?
- Unlawful taking of personal property from another by force or fear.
- What is burglary?
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Common Law:
Breaking and entering the dwelling house of another at night-time with intent to commit a felony therein.
Modern Law:
Breaking and entering the structure with intent to commit a crime. - What is arson?
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Common Law:
Unlawful burning of another's dwelling.
Modern Law:
Unlawful malicious burning. - What is larceny?
- Unlawful taking of personal property from another. It's by trick.
- What is theft?
- Unlawful taking of personal property.
- What is forgery?
- Making an alteration on a document with intent to commit fraud.
- What is embezzlement?
- Wrongful conversion of personal property.
- Terms of 3 I's of defense to criminal law?
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Infancy:
0-6 -> absolute presumption of incompetence.
7-12 -> presumption of incompetence maybe refuted by the state.
13-18 -> presumption of competence maybe refuted by the minor.
Insanity:
M'Naghten Rule/Test -> inability to know right from wrong.
Model Penal Code (MPC) -> must show a person is suffering from a disease of the mind that makes it incapable of showing the wrongful of their acts.
Intoxication:
Only if involuntary. - What is entrapment?
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Gov't induces the defendant to commit the crime.
Defendant was not predisposed to commit the crime. - What is statute of limitations?
- All crimes have a statute of limitions with the exception of one: MURDER.
- What is the rule of law for Miranda v. Arizona?
- Rule: Must always be given while in custody before interrogation.
- What 2 entities may bring formal criminal charges against an individual?
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District attorney - information.
Grand jury - indictment. - What is cyber stalking?
- Use of computer to annoy, harass or threaten an individual.
- What is cyber theft?
- Use of computer to take information or property unlawfully.
- What is cyber terrorism?
- Use of computer to set a virus or bomb on computer system.
- What is hacking?
- breaking into a secured system of another.