MGMT 246 Richard Parry Exam 1

The legal environment

includes the court system, administrative agencies, alternatives to litigation, the laws and legal systems of other nations

Constitutional Law

The U.S. Constitution is the Supreme Law of the land

Statutory Law

Enacted by legislative bodies

Includes ordinances

Uniform Laws

An unofficial set of laws proposed for all states to adopt as written, for the purpose of their being more uniformity of laws from state to state

Administrative Law

Rules, orders and decisions of administrative agencies

The Doctrine of Stare Decisis (to stand on decided cases)

1. A court should not overturn its own precedent absent a compelling reason

2. Decisions by a higher court are binding on lower courts within the jurisdiction

Judge-made law

Controls all law not addressed by statutory law or administrative law

Controlling Precedents

Binding authorities Include: Constitutions, Statutes, Regulations, Court decisions

The Natural Law School

Moral and ethical principles that are inherent in human nature

The Positivist Law School

There are no such things as "natural" rights A law must be obeyed until it is changed

The Historical School

Emphasizes the evolution of legal thought through the origin and history of the legal system

Legal Realism

The law is shaped by social forces and needs Judges should consider social and economic realities

Substantive Law

Laws that define, describe, regulate, and create legal rights and obligations

Procedural Law

The methods of enforcing the rights established by substantive law

Civil Law

The duties that exist between persons or between citizens and their governments, excluding the duty not to commit crimes

Criminal Law

Wrongs committed against the public as a whole

Cyberlaw

Deal with issues raised by cyberspace transactions Traditional classifications of law, including criminal law, are applied to online activities

Corporate (Business) Contacts

A corporation (business) is usually subject to personal jurisdiction in the state in which it:

1. Is incorporated,

2. Has its principal office, and

3. Is doing business.

Per Curiam

(of the court) Does not designate which judge or judges wrote the opinion

Tends to indicate displeasure

The Judiciary's Role in American Government

To interpret and apply the laws

The Origins of Judicial Review

Marbury v. Madison

Judicial review is exercised by both federal and state courts

Jurisdiction

the official power to make legal decisions and judgments.

In Personam Jurisdiction

Jurisdiction over a single person or business within a geographical area

In rem jurisdiction

Jurisdiction over all property in an area

Long-Arm Statutes and Minimum Contacts

A court may have jurisdiction over some defendants that do not live in the state if certain activities took place within the state

Minimum contacts

The defendant must have enough contacts with the state to satisfy a judge that it is fair for the court to exercise jurisdiction over the nonresident

Basic Judicial Requirements

Jurisdiction, In Personam Jurisdiction, In rem jurisdiction over property

The minimum-contacts requirement is usually met if the corporation:

1. advertises or sells its products within the state, or

2. places its goods in the stream of commerce with the intent that the goods be sold in the state.

A court's jurisdiction may be limited by

1. The subject of the lawsuit,

2. The amount in controversy,

3. Felony or misdemeanor,

4. Trial or appeal

Article III, Section 2 of the Constitution states that federal courts have jurisdiction over:

1. A Federal Question

2. Diversity of Citizenship

Federal courts have exclusive jdx over:

1. Federal crimes,

2. Bankruptcy,

3. Most patent and copyright claims,

4. Lawsuits against the U.S.

5. Some areas of admiralty law

State courts have exclusive jdx over:

1. Family law,

2. Probate.

Jurisdiction in Cyberspace

1. Substantial business conducted over the 'net (i.e., contracts and sales),

2. Some interactivity through a Web site

3. Passive advertising

International Jurisdictional Issues

The world's courts seem to be adopting a "minimum contacts" standard

This means that a business may have to comply with the laws of any jurisdiction in which it actively targets customers for its products

Venue

A court trying a suit should be in the geographic neighborhood (usually the county) where the incident occurred, or where the parties reside

Res judicata

bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action

Writ of certiorari

An order issued by the U.S. Supreme Court to a lower court requiring the latter to send it the record of the case for review

Standing to Sue Requires

The foregoing requires:

1. A sufficient stake in the controversy (either harm or threatened harm), and

2. A justiciable controversy a. Real and substantial, not hypothetical

3. Harm, either actual or imminent as opposed to hypothetical,

4. Causation,

5. Remedy.

Alternative Dispute Resolution

Any method for resolving disputes outside the judicial process

often less expensive, faster, private, and flexible

Procedural Rules

Specify what must be done at each stage of litigation

Stages of Litigation

Pretrial, trial, and posttrial

Mini-trial

Each party's attorney briefly argues the case before the other party in the presence of a neutral third party who acts as an advisor and an expert in the area of the dispute.

Discovery

Before a trial begins, the parties can obtain information and gather evidence

Discovery Rules

Any matter relevant to the claim or defense of any party

Pretrial Procedures

The Pleadings

Consist of Plaintiff's Complaint and Defendant's Answer

The Plaintiff's Complaint

Voir Dire

(To speak the truth) a preliminary examination of a witness or a juror by a judge or counsel

The Defendant's Response to the Complaint

Typically an Answer

Affirmative Defenses "May admit the truth of the allegations in the complaint but raise new facts to show that the defendant is not liable for plaintiff's damages"

Counterclaims

Rules of Evidence

Evidence must be relevant to the issues

Rebuttal

Additional evidence presented by the plaintiff to refute evidence presented by the defense

Rejoinder

Additional evidence presented to refute evidence presented by the plaintiff

Tenth Amendment

reserves all powers not delegated to the national government to the states, or to the people

The Privileges and Immunities Clause

Prohibits states from imposing unreasonable burdens on citizens of another state, particularly with regard to means of livelihood or doing business

Posttrial Motions

Motion for a New Trial will be granted if the judge:

1. Is convinced the jury is in error, but

2. It is inappropriate to grant judgment to the other side.

Writ of Execution

Order to sheriff to seize and sell defendant's nonexempt assets

Content-Neutral Laws

Laws that regulate the time, manner, and place, but not the content, of speech, receive less scrutiny than laws that restrict the content

The Establishment Clause

Prohibits the government from establishing a state-sponsored religion or from promoting or showing a preference

The Full Faith and Credit Clause

Applies to civil matters only. Deeds, wills, contracts and judicial decisions will be honored by other states

The Free Exercise Clause

Guarantees that no person can be compelled to do something contrary to his or her religious beliefs

The Commerce Clause

Prohibits states from establishing laws and regulations that:

Interfere with trade and commerce among the states

Has a greater impact on business than any other provision in the Constitution

Authorizes Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes."

Search Warrants and Probable Cause

There must be probable cause to justify a search warrant

Trustworthy evidence that would convince a reasonable person that the search is more likely justified than not

Requires a particular description of whatever is to be searched or seized

Self-Incrimination

In any federal or state proceeding, an accused cannot be compelled to give testimony that might subject him or her to criminal prosecution

When the court analyzes an equal protection issue, it uses one of three standards of review:

1. Strict Scrutiny

2. Intermediate Scrutiny

3. The Rational Basis Test

HIPAA

Patients must be informed of their privacy rights and how their medical information will be used

Generally forbids the disclosure of medical information for marketing purposes

The USA Patriot Act and the USA Freedom Act

Allows government access to personal financial information and student information

Law enforcement may also track the telephone and e-mail communication of one party to determine the identity of others

Equal Protection

Individuals that are similarly situated must be treated in a similar manner. When a law distinguishes between or among individuals (a classification), the basis for the distinction is examined.

Business Ethics

What constitutes right or wrong behavior, how moral principles are applied to situations that arise in the workplace.

The Triple Bottom Line

Profits Impact on people Impact on the planet

The Sarbanes-Oxley Act

Requires confidential systems to report illegal or unethical practices

Battery

Unexcused and harmful or offensive intentional physical contact

Any unpermitted, offensive contact, whether harmful or not

False Imprisonment

Intentional confinement or restraint without justification

Duty-Based Ethics

Religious ethical principles Are absolute: Thou shalt not steal

Outcome-Based Ethics: Utilitarianism

The greatest good for the greatest number: Outcome oriented

Cost-benefit analysis

Applying the utilitarian theory requires:

1. A determination of which individuals will be affected,

2. A cost-benefit analysis assessing the negative and positive effects of alternative actions on these individuals,

3. A choice among alternative actions that will produce maximum societal utility (the greatest good for the greatest number)

Corporate Social Responsibility

Pairs duty-based and outcome-based concepts

Combines a commitment to:

1. good citizenship,

2. ethical decisions,

3. improving society, and

4. minimizing environmental impact

Liability WITHOUT fault

A defendant may be liable for harm even if they used the utmost care and were NOT negligent

Tort law

is intended to compensate those who suffer:

1. a loss (damages), or

2. injury, due to

3. another's wrongful (but not criminal) act

Assault

1. An intentional, and

2. unexcused threat, of

3. immediate harmful, or

4. offensive contact

PRODUCT LIABILITY

Manufacturers, sellers, and lessors of goods can be held liable to consumers, users, and bystanders for physical harm or property damage that is caused by the goods

Fraudulent Misrepresentation

When a fraudulent misrepresentation has been made to a user or consumer and that misrepresentation ultimately results in an injury, the basis of liability may be the tort of fraud

Defamation

Wrongfully hurting another's good reputation

May also occur with a false statement of fact about a person's product, business or legal ownership rights to property

Invasion of Privacy

1. Intrusion on an Individual's Affairs or Seclusion Searching someone's house or briefcase, Unauthorized wiretaps, unauthorized access of banking information, employer-required blood tests, Peeping Toms

2. Publication of Information that Places a Person in a False Light (May also be defamation)

3. Public disclosure of private facts that an ordinary person would find objectionable (Congressman Anthony Weiner or a private citizen?)

4. (Mis)appropriation of identity. The Use of a Person's Name, Picture, Likeness or other identifiable characteristic for commercial purposes without permission

Appropriation (should be called misappropriation) Statutes

Normally an individuals' right to privacy includes the right to the exclusive use of his or her identity

Use of another's name, likeness, or other identifying characteristic, without permission and for the benefit of the user is appropriation

Elements of Fraud

1. Misrepresentation of a material fact with knowledge it is false or a reckless disregard for the truth,

2. Intent to induce reliance on the misrepresentation,

3. Justifiable reliance,

4. Damages,

5. A Causal Connection

WRONGFUL INTERFERENCE

Two kinds:

1. With a contractual relationship

2. With a business relationship

Trespass to Land

1. without permission,

2. enters land of another, OR

3. causes anything to enter, OR

4. remains on the land, OR

5. permits anything to remain

Disparagement of Property

Economically injurious falsehoods about another's product or property.

1. Slander of Quality 2.Slander of Title

Dram Shop Act

Tavern owner or bartender held liable for injuries caused by a person who:

1. became intoxicated while drinking at the bar or

2. who was already intoxicated when served by the bartender

STRICT PRODUCT LIABILITY

Liability regardless of intent or the exercise of reasonable care

PRODUCT LIABILITY BASED ON NEGLIGENCE

Negligence is generally the failure to use:

1. that degree of care,

2. that a reasonable, prudent person would use,

3. under the (same or similar) circumstances

STRICT PRODUCT LIABILITY AND PUBLIC POLICY

Strict liability is based on public policy because:

1. Consumers should be protected against unsafe products,

2. Manufacturers and distributors should not escape liability for faulty products simply because they are not in privity of contract with the ultimate users of those products, and,

3. Manufacturers and sellers of products are in a better position to bear the costs associated with injuries caused by their products -- costs that they can ultimately pass on to all consumers in the form of higher prices.

The Requirements for Strict Product Liability

A cause of action will exist only if the following six basic requirements are met:

1. The product is defective when sold by defendant,

2. The defendant must normally be engaged in the business of selling (or distributing) that product,

3. The defect made the product unreasonably dangerous,

4. Physical harm or property damage,

5. Proximate cause,

6. The product must not have been substantially changed from the time the product was sold to the time the injury was sustained.