Business Law

Reasonable

would a normal, plain person do the same

Foreseeable

reasonable person could have predicted what happened

Jurisdiction

the power of the court to hear a case

State Court System

Trial Court

Appellate Court: appeals (Appellant: the party who appeals. Appellee: the party who is content with the initial ruling)

Cases are appealed ONLY on a basis of law

State Supreme Court

Must show error of law by the appellate court

Federal Court System

United States District Court; trial court in the federal system

United States Circuit Courts; intermediate appellate court

United States Supreme Court

Damages

money

Punitive Damages

serve to punish the defendant for extremely offensive, even outrageous, behavior; also called exemplary damages

Promotor

the person who brings about the creation of the artificial legal

person

Express contract

written or oral

- Most contracts do not have to be in writing (though advisable to do

so)

Implied contract

implied through actions of both parties

Burden of proof (civil)

preponderance of evidence (Easier to satisfy)

Burden of proof (criminal)

beyond a reasonable doubt

Equitable relief

Non-money reward for injury (recession, injunction, and specific performance)

Recession

put the parties back to the same state they were before a contract

injunction remedy

stop someone from doing something

Specific performance

unique subject matter in the contract

Dilution

products are dissimilar but distinctive quality of the famous mark

is diluted

Birthright Citizenship

American citizens include anyone born in the United States

Sources of Law

Constitutions, Statutes, Common Law, and Regulations

Supreme Law of Land

U.S. Constitution

Uniform Laws

Uniform Commercial Code (UCC): drafted by judges, lawyers, and businesspeople to facilitate business transactions

Stare decisis

let the decision stand; provides stability and consistency

Equitable Maxiums

1. One who is seeking the aid of equity must come to the court with clean

hands

- Someone who has clean hands has acted in good faith. They have not done anything wrong and are deserving of

justice.

- The clean hands doctrine by analogy applies to cases at law involving damages and not just cases in equity

Procedure:

the way that the laws are enforced through litigation and other methods

Civil case

seeking damages or equitable relief

Concurring

agrees with the decision but for a different reason

Dissent

disagrees with the decision

Case of first impression

When there is no precedent

Stakeholder

any party that is influenced by the corporation's behavior (including stockholders and shareholders)

Corporate social responsibility

includes considering effects on the environment and community. Consider and balance the rights of other stakeholders, not just shareholders/stockholders, although they are the priority.

Preemption

If there is a conflict between state and federal constitution, the federal provision

ALWAYS wins

Commerce Clause

Without limit if you use it literally as it gives Congress the power to govern interstate commerce as opposed to commerce which is intrastate

Dormant Commerce Clause

prevents states from interfering with interstate commerce

- Often states will attempt to give an economic advantage to their own citizens e.g. lower taxes, longer waiting periods for out of state businesses to sell

product

Where do you find congressional intent

Legislative history

First Amendment

Freedom of speech; religion; press; assembly

Natural persons have very broad free speech rights, whereas corporations had

restricted political speech (until Citizens United) and their commercial speech

(highway billboards) is argued to be distracting and aesthetically displeasing,

which is also a consumer protection approach; commercial speech is much less

protected for corporations than political speech

Digital Update to First Amendment

- Lester Packingham Jr. is a sex offender

- The state has an interest in the protection of children vs Lester's right to

speech

- North Carolina had a law called "Protect Children from Sexual Offenders

Act" in an attempt to protect against predators from seeking victims on the

internet

- Lester wrote a Facebook post about a traffic ticket and a police officer

found the post and argued that this violated the act as he cannot use the

internet since he is a sex offender

- This went to the U.S. Supreme Court, which held that prohibiting sex

offenders from accessing all social media violates their First Amendment

rights

Establishment Clause

No state established religion

Free Exercise Clause

it does not have to be a mainstream religion. The criteria is reasonable accommodation

e.g. fire worship cannot be reasonably accommodated due to the public

policy of safety

4th and 5th Amendment

Due process (Fifth Amendment) and Search and Seizure protections (Fourth

Amendment) under the Bill of Rights are against the government, not private employers

Reasonable expectation of privacy is the standard for search and seizure; can

be used by analogy in cases not involving the government

Holt v. Home Depot

won based on promissory estoppel, not the reasonable expectation of privacy; plus private employer was involved, not the government; will study in contracts

Standard for a warrant under the 4th Amendment

probable cause

Procedural

process in which you enforce your rights

Substantive

the actual rights you have

Branches of Government

1. Executive - President

2. Legislative - Congress (Senate (2 per state) and House of Representatives (based on state pop))

3. Judicial - U.S. Supreme Court

Supreme Court Justices

John Roberts (Chief Justice)

Neil Gorsuch

Samuel Alito

Clarence Thomas

Amy Coney Barrett

Ketanji Brown-Jackson

Sonia Sotomayor

Elena Kagan

Checks and Balances

Legislative branch can override a presidential veto, judicial branch

has power of judicial review; Legislative branch passes laws; executive

(e.g., governor; President) sign into law

In rem jurisdiction

the court has power to act over property even though the owner of the property is not subject to its jurisdiction; example: property you own in another state could be the subject of in rem jurisdiction (the property is the primariy cause of action)

subject matter jurisdiction

e.g. traffic court has jurisdiction over cases concerning violations of traffic

laws

Long-arm statute

the court extends its jurisdiction over an out-of-state defendant when he or she has established minimum contacts which is a benefit/burden analysis

Minimum contacts

can be established when you sell a product over state lines. However, information-only websites do not establish minimum contact

Where is a corporation a citizen of

where it has its principal place of business and is incorporated (mostly in Delaware for major corporations: very pro-business laws)

How to get into federal court

1. Federal question (federal statute or U.S. Constitution)

2. Diversity Citizenship (Plaintiff and defendant are from different states, over the dispute of $75,000 or more. Corporate defendant may have a different place of incorporation than place of business)

Concurrent jurisdiction

where there exists both state and federal jurisdiction

A. Plaintiff chooses the forum

B. Defendant can remove to federal court

Venue

physical location of litigation

Standing

Limits who has the right to sue; must have a legally protected interest

at stake

Public nuisance

affects a large group of people

E.g. airport noise

Private nuisance

affects a small group of people

E.g. your neighbor playing loud music

Writ of certiorari

process of appealing to the Supreme Court

- Almost all of them are denied

Shadow Docket

When a legal opinion is made without any hearings and almost always without comment by the justices; increasing number of these under the current Roberts Supreme Court (Justices' votes are secret; Lacks accountability and transparency)

Arbitration

An arbitrator mediates a dispute and imposes an award (which the parties have to follow), usually leaning in favor of the corporation

Mediation

A mediator listens to a dispute and offers advice to the parties, saying what the award should be, but it is not binding.

Types of Alternative Dispute Resolution (ADR)

negotiation, mediation, arbitration

Settlement

requires negotiation and lawyers cannot make any decisions on behalf of the client

Contingency

attorney only gets paid if the client wins (they get a percent of the earnings)

Legal fee payment options

fixed fee, hourly rate, or contingency

Complaint

Notice (essential element of due process) of the lawsuit, including the court that had jurisdiction, the cause of action, and what the plaintiff is seeking

Default judgement

If the defendant does not answer the complaint, then the court will issue a judgment in favor of the plaintiff

Pre-trial conference with attorneys in the judge's chambers

The judge often puts pressure on the parties to settle to clear their docket

(their cases)

Motion for Summary Judgment

The defendant files this motion when they think the plaintiff's case is not strong enough and should be thrown out

Discovery

You try to discover as much as you can about the other party's case The underlying policy is to get parties to settle because courts do not want delay so there is pressure to settle. Intent is to have each party be fully aware of the other party's case; no surprises! Good faith compliance with discovery is required

Deposition

This involves questioning opposing parties or witnesses before trial with a court reporter present who transcribes everything that is said, which is admissible during trial, both parties and their lawyers are there

Interrogatories

written questions by one party that is served on the other

Electronic Discovery

A party must hire an expert to retrieve the evidence in its electronic format

but it is time consuming and expensive; forensic review can cost millions

Statute of frauds

in civil litigation, certain contracts must be in writing to be enforceable

Affirmative defenses

Defendant raises new facts to show it should not be liable

Heresay

someone telling the court/jury what another person said or thought

Heresay exceptions

1. The person who said it first has died

2. dying declaration

Bench trial

Trial with no jury, the judge alone hears the case

Motion for Judgment Notwithstanding Verdict

The judge has to throw out the jury's verdict if as a matter of law it is not legally

sustainable. Only if the verdict is unreasonable and erroneous.

Attractive plaintiff

one the jury likes and relates to/has sympathy for

Res Ipsa Loquitur

"the thing speaks for itself"

establishes causation in negligence (both

actual and proximate)

Writ of Execution

You get the sheriff's office to seize the judgment debtor's non- exempt assets

Garnishment

the collection of assets held by a third party. The third party can be an employer or a financial institution.

Punitive damages

damages with the intention to punish the defendant

a) Also known as exemplary damages: make an example of their inappropriate behavior

General; compensatory; actual damages

To reimburse plaintiff for their losses; these are the damages routinely awarded

Intentional torts

the action itself was intended

EX: assault, battery, false imprisionment

Tort reform

places limits on the money that plaintiffs can be awarded

Consent

biggest defense to intentional torts

Implied - with you actions

Expressed- written or oral

Secondary liability (Respondeat Superior)

an employer is responsible for the actions of their employees within the scope of employment

Primary liability

an employer is responsible for the actions of themselves (negligent hiring, negligent supervision, negligent retention)

Wrongful Interference with a Contractual Relationship (Intentional Tort)

Interfering with an ongoing contract is an intentional tort because a contract is a

legally enforceable promise (must be for business profit)

Intentional torts against property

Trespass, Conversion, Nuisance

Trespass

to intentionally use another persons property without their permission;

also used for real property

Conversion

not just use another's personal property without consent, but change it (include losing or damaging the property)

Nuisance

an unlawful, substantial, and unreasonable interference with a person's use or enjoyment of their real property

5 elements of negligence

Duty: Everyone has the responsibility to act as a reasonable person

Breach: You fail to act reasonably (breach of duty)

Actual Cause: "but for", causes event or chain of events that leads to damage

Proximate Cause: the damage had to be foreseeable

Damage: the plaintiff was damaged by the negligence

Strict Liability

Liability without fault, the law imposes liability simply because of who you are or

what you are doing

Strict Liability Examples

Hazardous/Dangerous activity, Worker's compensation, Product liability

Comparative Negligence

Damages awarded are diminished based on how negligent the plaintiff was; Fairer but arbitrary determination of percentages of relative liability

Contributory Negligence

If you are in any way negligent, you do not get any damages; very clear; all or nothing; can lead to a harsh result