BUL 3130 Final Exam

Sources of Law

Constitutional, Statutory, Administrative, Common

Common Law (Case Law)

The body of judicial decisions that interpret & enforce the different laws and rule on disputes between parties

Jurisdiction

The authority of a court to hear a case

Personal Jurisdiction

The power of a court to force a person to appear before it

Concurrent Jurisdiction

When one or more federal courts and one or more state courts have subject matter jurisdiction over the same dispute

Federal Question Jurisdiction

Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties.

Diversity Jurisdiction

the power of the federal courts to hear matters of state law if the opposing parties are from different states, or if one is a foreign citizen, and the amount in controversy exceeds $75,000

Original Jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.

Long-arm statutes

The court can exercise jurisdiction over out-of-state defendants if they had sufficient minimum contacts to warrant it

Stare Decisis (precedent)

"Let the decision stand"...when a previous ruling on a similar case in the past impacts a ruling on a current case

Plaintiff

One who begins a lawsuit

Defendant

an individual or group being sued or charged with a crime

Appellant

The party who takes an appeal from one court to another.

Appellee

The party opposing an appeal from a lower court to an appellate court.

Judge

a public official appointed to decide cases in a court of law.

Jury

A group of people sworn to abide by the laws to determine the truth

Federal Courts

district courts, court of appeals, supreme court

Appellate Court

reviews decisions of lower courts to determine if a significant error of law was made during trial

State Courts

courts which deal with state criminal and civil cases and appeals.

Federal Courts Jurisdiction

1) Diversity of Citizenship- a federal court can exercise jurisdiction in cases between 1) citizens of different states and 2) when the amount in controversy exceeds $75,000 (or in cases between a foreign country and citizens of a state or of different states

United States Supreme Court

Highest court in the land that has appellate jurisdiction over state and federal cases and original jurisdiction over cases where the U.S. is a party and those involving ambassadors, consuls, and public ministers.

Writ of Certiorari (cert)

A document issued by the Supreme Court indicating that the Court will review a decision made by a lower court. Four or more SC judges must vote yes for the court to hear your case.

Social Responsibility

An organization's obligation to maximize its positive impact and minimize its negative impact on society

Defamation

Slander or libel

Slander

Spoken defamation

Libel

Written defamation

Fraud

A deliberate deception intended to secure an unfair or unlawful gain

Negligence Elements

Duty, breach of duty, causation, damages

Duty to Act

Your legal responsibility to do something in the case of an emergency

Proximate Cause

The legal connection between unreasonable conduct and the resulting harm

Punitive damages (exemplary damages)

A payment awarded by a court to punish a defendant for a reckless, malicious, or deceitful act to deter similar conduct; the award need not bear any relation to a party's actual damages.

Contributory Negligence

A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault.

Comparative Negligence

A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely.

Trademark

A distinctive mark, motto, or device that a manufacturer stamps, prints, or otherwise affixes to goods so that they may be identified

Patent

An inventor's right to make, use, or sell their invention for a period of time. They are obtained for a product, process, or design.

Copyright

The exclusive right of an author to publish, print or sell a product of his or her intellect for a certain period of time

Elements of a Crime

Mens rea and actus reus

Mens Rea (guilty mind)

Criminal intent, or a mental state of mind that is required, which leads to criminal liability for a particular crime.

Actus Reus (guilty act)

Requirement that, for an act to be considered criminal, the individual must have committed a voluntary act, omission, or state of knowing possession prohibited by the criminal law.

Burden of proof in a criminal case

Burden of proof is on the prosecution to prove defendant guilty beyond a reasonable doubt

Burden of proof in a civil case

By the greater weight of the evidence

Felony

A crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death.

Misdemeanor

A crime or offense that is less serious than a felony; any minor misbehavior or misconduct.

Duress Defense

Valid defense to all crimes, except intentional murder, if the defendant committed the crime because of a serious threat and he reasonably believed that the only way to avoid death or injury to himself or others.

Entrapment Defense

Valid if (1) criminal design originated with law enforcement officers and (2) the defendant must not have been predisposed to commit the crime.

Embezzlement

Theft or misappropriation of funds placed in one's trust or belonging to one's employer.

Mail and Wire Fraud

Occurs when someone engaging in a fraudulent activity uses the telephone, Internet or U.S. Postal Service to discuss, send or receive correspondence to further the fraud.

Bribery

When someone voluntarily offers payment to get an illegal advantage.

Theft of Trade Secrets

The intentional taking, copying, or using another's trade secrets with the knowledge the owner of the trade secret will be injured by such action.

Insider Trading

The illegal trading of a company's stock by people using confidential company information.

Organized Crime

A business operation that supplies illegal goods and services for profit

Money Laundering

Engaging in financial transactions to conceal the identity, source, or destination of illegally gained funds.

Justifiable Use of Force/Self-Defense

The privilege to take reasonably necessary steps to protect one's self, another person, or one's property against injury by a third party.

Insanity Defense

Legal defense proposing that people shouldn't be held legally responsible for their actions if they weren't of "sound mind" when committing them

Fourth Amendment Protections

Protection from unreasonable searches and seizures.
Requirement that no warrant for a search or an arrest be issued without probable cause.

Fifth Amendment Protections

1. Double Jeopardy
2. Right to remain silent (does not apply to corporations)
3. Guaranty of Due Process

Express Contract

A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.

Implied Contract

A contract that comes about simply from actions of the parties.

Contracts with Minors

The general rule is that a minor may enter into contracts but the contracts are voidable at the option of the minor. A company that contracts with a minor may find itself with relatively few rights if the minor disaffirms the contract.

If a minor has received benefits, such as a 16-year-old buying a car on credit and driving it for 6 months, restitution must be paid by the minor for the value of the benefit received, even if the minor is not liable on the contract itself.

Contracts for Illegal Purposes

Are void

Bilateral Contract

A promise made in exchange for another promise

Unilateral Contract

A contract that results when an offer can be accepted only by the offeree's performance.

Valid Offer

A serious specific offer and a specific demand in a contract setting

Valid Acceptance

Acceptance is the manifestation of assent in the manner invited and the time required. Acceptance must mirror the terms of the offer exactly. If any term is different, that is a rejection and counteroffer. Under the "Mailbox Rule" acceptance is effective when sent, not received.

Counteroffer

An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer.

Strict Liability

The legal responsibility for damage or injury, even if you are not negligent.

Valid Consideration

Tangible or Intangible, Cash, Promissory note, Services performed or contract for future services, Other securities, Property, Gifts

Invalid Consideration

Pre-existing obligation, Prior consideration, Promise to make a gift

Substantial Performance

Occurs when one party fulfills enough of its contract obligations to warrant payment

Warranties

Formal statements of expected product performance by the manufacturer

Implied Warranties

A warranty imposed by law or by implication or inference from the nature of the transaction or the relative bargaining positions or circumstances of the parties.

Employee

Someone who works for an employer.

Independent Contractor

One who works for, and receives payment from, an employer but whose working conditions and methods are not controlled by the employer. An independent contractor is not an employee but may be an agent.

Agent's Duties to the Principal

Performance, Notification, Loyalty, Obedience, Accounting

Principal's Duties to Agent

Compensation, Reimbursement, Indemnification (undisclosed agent), Cooperation, Safe working conditions

Sole Proprietorship

a business owned and managed by a single individual

Sole Proprietorship Advantages

Easiest to start, Least regulated, Single owner keeps all the profits, Taxed once as personal income

Sole Proprietorship Disadvantages

Unlimited liability, Lack of continuity, Lack of money, Limited management skills, Difficulty in hiring employees

General Partnership

A partnership in which all owners share in operating the business and in assuming liability for the business's debts.

General Partnership Advantages

Ease of creation ("start-up"), Partnership income is partner income, Business losses qualify for tax deduction.

General Partnership Disadvantages

Unlimited liability, Must be dissolved or reorganized if a partner leaves or dies

Limited Partnership (LP)

A partnership consisting of one or more general partners and one or more limited partners.

Limited Partnership Advantages

Income is taxed as personal income only, Capital is easier to raise in a partnership, Ideal structure for partners who do not want an active role, Minimum government regulations, Limited partners are not held liable, General partners have complete control

Limited Partnership Disadvantages

More start up requirements and complex paperwork, more expensive, general partners have no liability protection

Corporation (Inc. or Corp.)

A business owned by stockholders who share in its profits but are not personally responsible for its debts. Artificial legal entity. Managed by directors and officers.

Corporation Advantages

Limited liability, Unlimited life, Separation of ownership and management, Transfer of ownership is easy, Easier to raise capital

Corporation Disadvantages

Separation of ownership and management, Double taxation (income taxed at the corporate rate and then dividends taxed at the personal rate)

S Corporation

A unique government creation that looks like a corporation but is taxed like sole proprietorships and partnerships

S Corporation Advantages

Limited liability of owners, Avoids double taxation, Ability to continue in perpetuity, Easy to transfer ownership to others

S-Corporation Disadvantages

Can have only 100 stockholders, With only rare exceptions, each stockholder must be a US citizen, Restrictions on use and deference of losses, Tax recognition on sales of assets, Limitation on Capital Attraction (VCs may require changing the form and status to C-Corp.)

Limited Liability Company (LLC)

A company similar to an S corporation but without the special eligibility requirements.

LLC Advantages

Limited liability, Choice of taxation, Flexible ownership rules, Flexible distribution of profits and losses, Operating flexibility

LLC Disadvantages

No stock, Limited life span, Fewer incentives, Taxes, Paperwork

Limited Liability Partnership

All partners are limited partners and not responsible for the debts and other liabilities of other partners

LLP Advantages

Limits personal liability to partners (protected), NOT jointly + severally liable, "Pass Through" advantage: individual partners are taxed based on how much A,B, or C owns/invested

EX: ABC, C commits malpractice, A+B's investments may be in jeopardy, but their personal property is protected.
- if comp. investments/$$ can't cover malpractice, C's personal prop. is in jeopardy

LLP Disadvantages

transferability

Uniform Partnership Act (UPA)

Act ordering common ownership interests, profit and loss sharing, and shared management responsibilities in a partnership

Domestic Corporation

A corporation in the state in which it is incorporated

Foreign Corporation

A corporation in any state in which it does business except the one in which it is incorporated

Alien Corporation

A corporation chartered by a foreign government and conducting business in the United States