Business Law

outcomes

= facts + law

jury shopping

hearing a case in a certain jurisdiction due to likelihood of jury deciding in favor

costs of protecting legal interests

economic, emotional, time, risk/reward

alternative dispute resolutions

disputing parties agree to mediation/arbitration

law

set of rules or conduct adopted by a group

common law

body of law developed throguh judicial decisions

uniform laws

federal gov proposes laws and states choose to accept

restatements

recitations of majority rules of law, suggested by group of experts

law characteristics

predictable, flexible, knowable, reasonable

burden of proof

level of evidence necessary for answer to be “yes” to question on triak

ordinary burden of proof

reasonable certainty based on greater weight of credible evidence

middle ground burden of proof

clear, convincing proof of claims

criminal case burden of proof

beyond a reasonable doubt

jury nullifcation

when jury ignores rules and uses inappropriate considerations

criminal law

violation of laws/statues

contract law

violation of duty imposed by agreements

functions of law

settle disputes, protect property, aid in. exchange of goods/services, protect the state

substantive law

creates, defines, and regulates legal rights and duties

procedural law

sets forth rules for enforcing rights created bu substantive law

stare decisis

precedence in legal decisions

adversary system

legal system in which two disputing parties make case in front of neutral party(judge/jury)

negligence

act that creates unreasonable risk of harm

elements of negligence

duty of care, breach, causation, injury

negligence per se

violation of statue conclusively showing negligence

licensee

person allowed on land with owner’s consent (ex: guest)

invitee

person allowed on individual’s land for business or as member of public

res ipsa loquitor

“the thing that speaks for itself”; rule for circumstantial evidence, allowing jury to infer negligence, requiring defendant to offer explanation

superseding cause

relieves defendant of liability, event after negligent conduct that aids in causing harm

negligence defenses

contributory, comparative, assumption of risk

contributory negligence

conduct by plantiff that falls below standard and legally contributes to own harm

comparative negligence

fault divided between parties by %

assumption of risk

plantiff expressly agrees to assume risk of harm from defendant’s conduct

strict liability

liability without fault, based on nature of activity (includes keeping animals and abnormally dangerous activities)

tort law

allocates losses due to human actions

criminal negligence

negligence to a high degree that actor should realize

vicarious liability

if employee is acting in scope of employment, employer is liable for actions(agency principle)

immunity statues

state you cannot be liable even if negligent (ex: landowner making land available for public use)

proximate cause

foreseeability that action would have casued the outcome

actual cause

did actions cause the victim’s harm

elements of res ipsa loquitor

defendant has control over the situation, event wouldn’t have occured without negligence, defendant doesn’t offer reasonable explanation

several liability

defendant limited to pay recovery equal to % fault assigned

joint and several liability

each defendant can be held liable for all losses suffered by plantiff

modified joint and several

defendant cannot be liable for full amount owed to plantiff unless liability exceeds set % (51% in WI)

origins of law

Constitution, statues, regulations, cases

jury’s role

decides matters of fact in case

intentional torts

violate criminal and civil statues, includes defamation, trespassing, and battery

damage cap

legal limit on what jury can award a plantiff for certain types of damage

trade secrets

information that derives independent economic value, is not readily ascertainable, and the owner takes reasonable effort to keep secret

violations of trade secrets

misappropriation; improper acquisition and disclosure

NOT misappropriation

reverse engineering, independent invention, public use/disclosure

trade symbols

form of identification for goods/services (meant to identify source)

trademark requirements

inherently distinctive(or secondary meaning) and in use

Lanham Act

permits trademark registration (not required); 10 year duration with unlimited renewals

Trademark Dilution Act

prohibits the use of a famous and distinctive mark if usage would lessen the capacity of the mark to identify good

blurring

cheapening name; causing confusion

tarnish

ruin name

Cyberpiracy Prevention Act

prevents squatting on a domain name, must be in use

copyright

protects original works of authorship; expression of an idea not the idea itself

copyright exclusive rights

reproduce copies, create derivative works, distribute copies of work, perform/display work

copyright requirements

original, tangible form, be owner of work

copyright registration

required for lawsuit but not to be protected or c usage; grants prima facie

how long does copyright protection last

author’s life + 75 years; if work for hire: 95 years from publication or 120 years from creation(whichever is first)

first sale doctrine

gives purchaser of copyrighted work right to transfer ownership of work as long as no new copies are made

fair use

some cases in which permission not needed to use work to promote public interests

fair use cases

education, commentary, criticism, news, parody/satire, etc.

fair use considerations

purpose, level of transformation, amount used, effect on market

No Electronic Theft Act

makes it federal crime to infringe on copyright even if not for commercial gain

Digital Millenium Copyright Act

illegal to delete copyright info or distribute false copyright info or use/distribute tech that circumvents copyright encryption

patent

protects right to make, use, or sell an invention to absolute exclusion of others for period of time

patent requirements

novel, useful, nonobvious

1 year rule

patent cannot be granted if more than a year passed since in public use, on the market or published in the US

treble damages

3x damages incurred, sends message

patent maintenance fees

occur at 3.5, 7.5, and 11.5 years

trade secrets laws

Uniform Trade Secrets Act(state); Defend Trade Secrets Act(federal)

trademarks laws

Lanham Act(federal); state laws

copyright law

federal (federal copyright act)

patent law

federal (constitution)

distinctiveness continum

fanciful, arbitrary, suggestive, descriptive

not protectable trademarks

descriptive; generic

trademark registration benefits

use of R, right to bring action to federal court, public notice, nationwide protection, shifts burden of proof to infringer

contract

enforceable agreement to act in a certain manner

elements for enforceable contract

offer/agreement, competent parties, consideration, legal subject matter

consideration

legal value exchanged between parties

quasi contract

implied contract by law; based on relationships

quasi contract elements

benefit given by one party to another, other knows of it and retains it 

void contract

no contract; illegal subject matter

voidable contract

one or both parties may avoid contract duties; reasons include fraud or incompetency

executory contract

partially unperformed contract

contract formation

mutual assent; offer + acceptance = contract

UCC Article 2

applies to sale of goods contracts

offer termination

revocation, rejection, counteroffer

offer requirements

manifest contractual intent, communicate to offerree, be definite and certain

gap filling

courts can fill gaps in contracts as long as clear intent to be bound be parties; fill using common law, prior contracts, and accepted business practices

UCC 2-306

deals with output requirements; decides fair quantity when not specified is based on good faith, demand, and reasonability 

mirror image rule

cannot change offer in acceptance; required for valid contract

UCC 2-207

exception to mirror image rule; deals with additional and different terms 

dispatch rule

acceptance valid when sent

UCC 2-206

prompt shipment; offer by buyer and prompt shipment is acceptance by seller; if delivers substitute, must notify buyer of accomodation because of breach

UCC 2-205

firm offers by merchants; cannot revoke offer if merchant signs in writing promise to keep offer open

knock out rule

applied to different terms; use gap filling instead