BUSN 85 Midterm - Business Law

Due Process Clause

Part of the Fifth Amendment. Provides that no one, without due process of law, can be deprived of: Life, Liberty, Property

Conflict Preemption

A state law conflicts with a federal law because complying with both at the same time is impossible.

Personal Jurisdiction (based on the defendant's location or contacts) exists in situation of a Business Defendant (Corporation, LLC, etc.) when:

The business's principle place of business is in the state. (Dancing) The business is incorporated or registered in the state. (Domicile) The business has sufficient "minimum contacts" with the state (e.g. does business in the state, directs advertising toward the state). (Doing business)

Victims of White-Collar Crime

General public Consumers Taxpayers Corporations

Warranty

Guarantee or binding promise that goods meet certain standards of performance

Classification of Torts

Intentional Torts Negligent Torts Strict Liability Torts

Tortfeasor

The legal term for a person who commits a tort

Arrest

To seize and hold under the authority of the law

"In Personam" Jurisdiction

(aka "over the person" or "personal jurisdiction"). (This jurisdiction is far more common than "in rem" jurisdiction)

Executive administrative agencies

usually located within a department of the executive branch of government where all appointed members serve the president. The Occupational Safety and Health Administration (OSHA), which is located in the Department of Labor, is an example of such an agency

Case Law

-Decisions made by courts that set a precedent for future cases. -Originated from the "common law" (case law is often referred to as common law) of England - judicial decisions made by English Courts. -Case law includes: Decisions that have interpreted existing laws (e.g. a constitution, statutes, administrative law, or case law) And Court decisions Case law that predates the formation of the U.S. federal and state governments still exists today as controlling law.

State fraud statutes vary, but most require proof of three elements:

1. An intent to defraud 2. The commission of a fraudulent act 3. The accomplished fraud

Steps in Civil Litigation: The Trial (Extended)

1. Jury Selection The jury is selected through a process called voir dire. The judge or the attorneys, or both, question potential jurors to determine whether they could render an unbiased opinion in the case. In most states, each attorney is allowed to reject a minimal number of potential jurors without giving a reason. These rejections are called peremptory challenges.

Steps in Civil Litigation: Post Trial (Extended)

1. Motions may be filed at the trial court level. 2. If either party believes an error was made at trial by the judge or the jury, the party may appeal. 3. Vast majority of appeals are based on questions of law, rather than questions of fact. Appellate courts are not inclined to question the jury's factual determinations. 4. Appellate courts have a few options upon review of appeals. They may affirm, modify, or reverse the lower court decision or/and remand the case back to the lower court with instructions. 5. The U.S. Supreme Court hears only a small fraction of cases that parties attempt to appeal through a writ of certiorari. The California Supreme Court also has discretion to accept or deny appeals, which parties request in California by filing a petition for review.

Consumer Review Fairness Act of 2016 - "Right to Yelp"

A company cannot include a "non-disparagement clause"/"gag clause" in a form contract with a customer that restrict the customer's right to post reviews about the company. Applies only to "form" contracts, not those that have been meaningfully negotiated. Is directed at customer's rights - does not apply to contracts between employers and employees or independent contractors.

California Elements of an Intentional Interference with a Contract

A contract existed between the plaintiff and another party; The defendant knew of the contract; The defendant intended to disrupt the performance of the contract; The defendant's conduct prevented performance or made performance more expensive or difficult; The plaintiff was harmed; and The defendant's conduct was a substantial factor in causing the plaintiff's harm.

Truth

A defense to both Libel and Slander

Administrative Agency

A government organization that is created by the legislative branch (e.g. Congress, a state legislature, or a city council) to carry out specific duties. Created by Congress through Enabling legislation

Mens Rea

A guilty mind. Included in Traditional Crimes. In other words, the vast majority of crimes require proof that the accused intended to commit the crime. Mere negligence is not sufficient.

Commerce Clause (narrow interpretation)

A narrow interpretation means that only a limited amount of trade or exchange can be regulated by Congress. Under the Court's initial narrow interpretation, it was interpreted to apply only to the transportation of goods.

Damages

A sum of money awarded to an injured party in a civil legal dispute. They are awarded by the finder of fact at trial (the jury, or the judge in a bench trial) and may also be awarded by an arbitrator in arbitration

Ultramares Doctrine:

Accountants are liable only to those in a privity-of-contract relationship with the accountant

Section 552 of the Restatement (Second) of Torts (Followed by California Courts)

Accountants are liable to a limited class of intended users of the information

Negligent Tort (Causation)

Actual cause - Determines if the defendant's conduct resulted in the plaintiff's injury Proximate cause - Determines if the plaintiff and the type of injury incurred by the plaintiff were foreseeable

Administrative Agencies (Judicial Power)

Adjudicate cases through an administrative proceeding. also includes the power to: Issue complaints. Hold a hearing in the presence of an administrative law judge. Issue either initial decisions or recommended decisions to agency heads.

Rulemaking

Administrative law includes the body of administrative rules created by the agencies and departments of the government that are intended to carry out the laws passed by Congress or a state legislature.

Subject Matter Jurisdiction

After determining the state territory having personal jurisdiction, you need determine whether you file in a Federal Court or a State Court within that Territory. Can be exclusively Federal, State, or both (if there is a concurrent jurisdiction).

Comparative Negligence

Allocates recovery based on percentage of fault allocated to plaintiff and defendant

"In rem" Jurisdiction

Alternative to "in personam" means "over the property"

Who do Amendments usually Restrict.

Amendments generally restrict the government and its agents, not private parties.

Duty of Care

An area of knowledge that is vital for all business managers. This is because courts require businesses to meet a reasonable duty of care for customers who enter the businesses' property. Businesses are required to warn customers of hazards they might encounter while on the property, or better yet, ensure that the property is safe for customers.

Tort

An injury to another's person or property (including economic interest), that does not arise from a breach of contract It is a Civil Wrong. (i.e. not criminal, even though the same behavior might give rise to criminal charges) Also referred to as personal injury cases, although it may involve harm solely to property.

Defendant's response

Answer, Motion to dismiss, and Counterclaim

Pretrial Conference

Are the parties ready for trial? Any matters need to be resolved before the trial?

Note about the Amendments, specifically the Bill of Rights and the Equal Protection Clause in the 14th Amendment.

As a result of "incorporations" by the Supreme Court, nearly all of the Bill of rights, as well as the Equal Protection Clause in the 14th Amendment, apply to both the states and the federal government.

Requests for Production

Asks opposing party to produce information (e.g. documents, electronic information, copies of photos, etc.) (written)

Defendant's response: Motion to Dismiss

Asks the court to dismiss the lawsuit. A defendant may believe that even if all of the plaintiff's factual allegations were true, the plaintiff would still not be entitled to a favorable judgment. They are not readily accepted in court, and must be proved beyond a doubt that the plaintiff cannot provide facts to substantiate their claim

Requests for admission

Asks the opposing party to "admit" or "deny" specific statements under oath. (written)

Defendant's response: Counterclaim

Asserts claims against the plaintiff. Defendant does this to show his/her cause for action against the plaintiff and may request for appropriate relief. The plaintiff can file a reply to this.

Defenses to a Negligence-Based Product Liability Action

Assumption of Risk Misuse of the product Statutory Defenses: -Statutes of Limitation -Statute of repose -State-of-the-art defense

Statutes of limitations

Bars actions arising more than a specified number of years after the cause of action arises (time limit)

Statute of repose

Bars actions arising more than a specified number of years after the product was purchased

State of the art defense

Based on the adherence to existing technologically feasible standards at the time the product was manufactured

Basic test of Dormant Commerce Clause

Basic Test: A state law that affects interstate commerce does not violate the dormant commerce clause if (1) the law is rationally related to a legitimate state end (under the state's police power) and (2) the burden on interstate commerce is outweighed by the benefit to the state's interest.

Concurrent authority

Both (state and federal) governments have the power to regulate the matter in question. This situation arises when authority to regulate in an area has been expressly given to the federal government by the Constitution. In such cases, a state may regulate in the area as long as its regulation does not conflict with any federal regulation of the same subject matter.

Regulatory crimes

Created through statutory law and associated administrative rules when the legislative branch decides that the need to protect the public outweighs the traditional requirement of mens rea

Common White Collar Crimes

Bribery Violations of Federal Regulations EX-Larceny, embezzlement, fraud, forgery, and violations of federal regulations that apply to professions and industries.

CONFLICT OF LAWS

CONFLICT OF LAWS

Commerce Clause can regulate

Can Regulate: 1. channels (waterways, airspace, highways, railroad tracks, telephone lines, Internet), 2. instrumentalities (railroad cars, buses, trucks, airplanes, boats) 3. activities that have a substantial effect on interstate commerce (even if activity appears intrastate -Wickard Wheat case. But not in Lopez gun possession case)

The Judicial Branch

Case Law Decisions made by courts that set a precedent for future cases

Classifications of the Law

Civil v. Criminal Substantive v. Procedural Cyberlaw

Commerce Clause as a Restriction on State Authority (Dormant Commerce Clause)

Commerce Clause grants authority to the federal government to regulate commerce. By implication, the states do not have the authority to regulate interstate commerce. Thus, an issue may arise when a state passes a law as an exercise of its police power that affects interstate commerce.

White Collar Crime

Committed in a commercial context by a member of the professional-managerial class. not a specific crime that can be crime. Rather, it is a term loosely referencing a category of crimes committed in a professional business setting.

Violations of Federal Regulations

Common White Collar Crimes. Violations of regulations pertaining to economic matters, protection of health, safety, and welfare of employees, consumers, and the general public

Types of Tort Damages

Compensatory Nominal Punitive

Implied Preemption

Conflict Preemption and Field Preemption

The Legislative Branch (Federal Level)

Congress (House and Senate) creates statutory law through the legislative process

Summary of Relationship between Administrative Agencies and Branches of Federal Government (extended long)

Congress creates administrative agencies and delegates to them the power to create rules/regulations. As the head of the Executive Branch, the President may issue executive orders regarding the management and operation of administrative agencies. The Judicial Branch has the power to render case law when resolving a legal dispute that declares administrative rules unconstitutional or beyond the scope of power granted by Congress. If Congress does not like rules created by an agency, Congress may pass legislation that renders such rules invalid. An administrative agency often includes powers that mirror the three branches of government - executive, legislative, and judicial.

Express Preemption

Congress expressly states that a federal law intends to preempt certain state law.

Defenses to Negligence

Contributory negligence. Comparative Negligence: pure and modified Assumption of the Risk

Basics - Administrative Agencies

Created by Congress, and delegated power from Congress, through statutory law. Technically fall under Executive Branch Never mentioned in Constitution

Misdemeanors

Crimes of lesser severity than felonies Punishable by fine or imprisonment in a local jail

Punitive Damages (Tort)

Damages awarded to the victim because of flagrant, unconscionable, or egregious acts willfully committed by the tortfeasor Purpose: To punish the defendant. Some legal experts conclude that threat of punitive damages effectively promotes safety in consumer products. Amount: Determined by the severity of the wrongful conduct and the wealth of the defendant.

Strict Liability Torts

Defendant is engaged in an activity that is so inherently dangerous that no amount of due care can make it safe; Defendant is held strictly liable for any damages caused by engaging in such activities E.g. - Blasting in populated areas, keeping undomesticated pets.

Proving Disparagement

Defendant made a false statement of a material fact about the plaintiff's business, product, or service Publication Damage to the reputation of the business, product or service Actual economic loss

Modified Comparative Negligence

Defendant must be more than 50 percent at fault for plaintiff to recover.

Assumption of the Risk

Defendant must show that the plaintiff voluntarily and unreasonably encountered a known risk. Must establish that the harm suffered was the result of a risk taken

Negligent Tort (Damages)

Defendant's action must have resulted in some harm to the plaintiff for which the plaintiff can be compensated

Negligent Tort (Breach of Duty)

Defendant's conduct was not consistent with the specified duty

Basics - Administrative Law

Detailed rules are written to implement statutory law

Informal negotiations

Discussing the dispute directly with the other party. Usually attempts to settle are discussed.

Negotiation

Discussions between the parties themselves in an effort to resolve the case.

Intentional Torts against Economic Interests

Disparagement, Intentional Interference with a contract,

Exclusive Jurisdiction in State Courts

Divorce and Adoption There is no (Diversity of Citizenship):The Plaintiff and Defendant reside in different states; If they reside in the same state, it must go to state court. Also, if the amount in controversy does not exceed $75,000.

Notes about Independent Administrative Agencies

Do not fall under a specific executive department Unlike executive agencies, the President does not have direct control over independent agencies. For example, the President's ability to remove officers is restricted (e.g. an officer cannot be removed without just cause), and the President has less power to direct the activities of independent agencies through executive orders.

Work-Product Doctrine

Documents prepared by an attorney in conjunction with a client's case are privileged May not be revealed without the client's permission.

In a Negligent Tort, the Plaintiff must establish:

Duty Breach of Duty Causation Damages

In a Negligent Tort, the Plaintiff must establish (extended):

Duty Standard of care that the defendant owes the plaintiff; Reasonable person standard Breach of duty Defendant's conduct was not consistent with the specified duty Causation Actual cause - Determines if the defendant's conduct resulted in the plaintiff's injury; Proximate cause - Determines if the plaintiff and the type of injury incurred by the plaintiff were foreseeable Damages Defendant's action must have resulted in some harm to the plaintiff for which the plaintiff can be compensated

Commerce Clause

Empowers Congress to regulate commerce with foreign nations, with Indian tribes, and among the states - Found in Article I of the U.S. Constitution Provides basis for federal regulation of business.

Reasonable foreseeable rule

Extends liability to third parties adversely affected by the performance of other professionals

Negligence

Failure to live up to the standard of care that a reasonable person would meet to protect others from an unreasonable risk

Service of Process

Gives the court in personam jurisdiction over the defendant. Includes the complaint and a summons. Provides the notice of the charges required by the defendant's due process rights

Enabling Legislation

Grants power to an administrative agency to issue rules, investigate violations of rules or statutes, and adjudicate disputes. Thus, while agencies usually fall under the Executive Branch of government, an agency may include powers found in all three branches of government. -Statutory law that specifies the name, composition, and powers of the agency being created. How Congress creates Administrative agencies.

Appeals

If either party believes an error was made at trial by the judge or the jury, the party makes this. The vast majority are based on questions of law, rather than questions of fact.

Subject Matter Jurisdiction (federal)

If it involves a Federal Question (issue of Federal Law) Concurrently in State court, unless the Fed Law is one where Fed Courts have exclusive jurisdiction (bankruptcy, patent, copyrights, admiralty law, states suing each other)

Types of Administrative Agencies

Independent Administrative Agencies Executive Administrative agencies.

Attorney-Client Privilege

Information furnished by a client to an attorney in confidence may not be revealed by the attorney without the client's permission Exception-Lawyer may reveal confidential information in order to prevent a future crime

Defamation

Intentional publication, or communication to a third party, of a false statement that is harmful to the plaintiff's reputation

Disparagement

Intentionally defaming a business product or service

Administrative Agencies (Executive Power)

Investigate whether the rules enacted by the agency have been properly followed by businesses and individuals

Subject Matter Jurisdiction (State)

Involves an issue of State Law. Concurrently in Federal Court if (Diversity of Citizenship): The Plaintiff and Defendant reside in different states; and the amount in controversy exceeds $75,000. Also, the state law must not have exclusive jurisdiction (divorce, adoption).

Intentional Torts

Involves purposeful action that the defendant knew, or should have known, would harm the person, property, or economic interests of the plaintiff

Administrative Agencies (Legislative Power)

Issue rules that have the force of law and are adhered to by individuals and businesses.

Jury Selection (Voir Dire)

Judge and/or attorneys question potential jurors to determine whether they can serve on case. (Also happens in criminal cases) In most states, each attorney is allowed to reject a minimal number of potential jurors without giving a reason. These rejections are called peremptory challenges.

Pure Comparative Negligence

Jury determines the percentage of damages for which defendant is liable (Cali follows this rule)

Intentional interference with a contract

Knowingly and successfully taking action to entice a third party to breach a valid contract.

Negligence per se

Legal Doctrine that may allow a plaintiff to rely on a statute as proof of negligent behavior: When a statute has been enacted to prevent a certain type of harm; And the defendant violates that statute, causing that type of harm to befall the plaintiff; The plaintiff may use proof of the violation as proof of negligence. A doctrine that Applies to Negligent Tort Cases

Miranda rights

Legal rights that must be communicated to a criminal suspect under arrest before any interrogation.

Mediation

Neutral 3rd party assists the disputing parties in their effort to resolve the case. Does not decide the case.

Defendant's response: Answer

Must admit, deny, or state that the defendant has no knowledge about the truth of each of the plaintiff's allegations in the complaint. It may also contain affirmative defenses.

Theories of Recovery in Product Liability Cases

Negligence, Breach of Warranty, Strict Product Liability

Plea bargaining

Negotiations between the defendant's attorney and the prosecutor.

Arbitration

Neutral 3rd party (the arbitrator) acts similar to a judge to hear both sides' positions and then decide the case. Arbitrator's decision is usually legally binding, just as a judge's ruling is binding. Similar to the litigation process, but less formal, usually faster, and usually in a private setting rather than the government court system.

Initiation of a Legal Action

Occurs when an informal resolution is not possible. Involves Pleadings

Service Liability

Occurs when someone or someone's property is harmed because of an inadequately performed service

Proving Libel

Once a plaintiff proves the elements of a case of libel, "general" damages are presumed as a matter of law. These damages provide the plaintiff with compensation for harms that are hard to quantify but that would almost certainly arise from libel, such as feelings of humiliation and loss of standing in the community

Trial Court Judge

Presides over the trial, decides questions of law (and questions of fact in a bench trial)

Strict Liability in Tort

One who sells a defective product that is unreasonably dangerous to the user or consumer or his family is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if: -The seller is engaged in the business of selling such a product -Product was defective when sold -Defective condition rendered the product unreasonably dangerous -Product is expected to and does reach the user without substantial change in the condition in which it was sold -Product was the cause of the plaintiff's injury Rule applies even if the: -Seller has exercised all possible care in the preparation and sale of the product -User has not entered into any contractual relation with the seller (no privity required)

Communication Decency Act-Defense

Online services that publish third-party content are protected against claims based on such content. The defendant must prove: That it is a provider or user of an interactive computer service; That the lawsuit asserted against the defendant treats the defendant as a "publisher or speaker" of the harmful information at issue; and That the information is actually provided by another information content provider Absent exceptions protect social media sites

There are various types of jurisdiction. You must file your case in a court that has all three of the following types of jurisdiction, as well as a court that is an appropriate venue:

Original or Appellate In Personom or In Rem Subject Matter

Pleadings

Papers filed by a party in court and then served on the opponent in a civil lawsuit. Enter this stage when informal resolution does not work. The basic pleadings are the complaint-filed by the plaintiff, the answer-filed by defendant, the counterclaim- defendant, and the motion to dismiss- defendant.

Takings Clause

Part of the Fifth Amendment. Provides that if the government takes private property for public use, it must pay the owner just compensation. Issue arise with: ****"public use", "just compensation", Regulatory taking - Does not involve a physical taking*****

Procedural Due Process

Part of the Fifth Amendment. procedural steps taken by the government to assure fairness before depriving citizen of life, liberty, or property - e.g. notice and an opportunity to be heard.

The Equal Protection Clause

Part of the Fourteenth Amendment - Prevents states from denying equal protection of the laws to any citizen. Prohibits discrimination that is not based on a sufficient justification. Government must treat similarly situated people in a similar manner.

Accountants' Liability

Plaintiff is required to prove: Duty -act as a reasonably prudent person in that profession (accountant, lawyer, doctor) Breach of duty Causation Damages

Negligence for Product Liability

Plaintiff must prove that the: -Defendant manufacturer owed a duty of care -Defendant breached the duty of care -Breach of duty caused the plaintiff's injury -Plaintiff suffered actual, compensable injury Privity is not required

Jurisdiction

Power of a court to hear a case and render a binding decision.

Original Jurisdiction

Power to initially hear and decide a case Referred to as a trial court. In California, the trial court is the Superior Court. At the federal level, the trial court is the District Court

Appellate Jurisdiction

Power to review a decision previously made by a trial court. (e.g. Court of Appeals, Supreme Court)

Federalism

Powers not specifically given to the federal government in the Constitution, and not prohibited to the states, are reserved to the states, or to the people. "...or to the People"? People have rights protected by the Constitution. The ultimate source of the Constitution is "We the People..."

Steps in Civil Litigation

Pretrial Stage The Trial Post Trial

Defenses to a Strict Product Liability Action

Product Misuse Assumption of the Risk (state of the art defense has been considered but rejected-no bearng on the outcome of a strict liability claim)

Burden of production of evidence

Prosecution must present physical evidence and testimony that proves all elements of the crime

Burden of persuasion

Prosecutor needs to convince the jury **beyond a reasonable doubt** that the defendant committed the crime. This differs from Civil Trials, which usually require proof by a preponderance of the evidence and sometimes by clear and convincing evidence

The Fifth Amendment

Protects both individuals and businesses through the Due Process Clause and the Takings Clause

Contributory Negligence

Proving that the plaintiff did not exercise the ordinary degree of care to protect against an unreasonable risk of harm. Lack of self-preservation resulted in the plaintiff's harm

Libel

Publication of a defamatory statement in permanent form

Criminal Law (extended long)

Punishes offenders for causing harm to the public health, safety, or morals (other- property, liberty, environment) Determines the range of punishment for prohibited conduct Unlike the remedial goals in court disputes arising from Civil Law, which are primarily intended to compensate injured parties, the primary goals in court disputes that arise from Criminal Law are to punish the wrongdoer. Traditional crimes include a mens rea - a "guilty mind." In other words, the vast majority of crimes require proof that the accused intended to commit the crime. Mere negligence is not sufficient.

Compensatory Damages (Tort)

Purpose: To put the plaintiff in the position he or she would have been in had the tort never occurred Amount: Sufficient to cover all losses caused by the tort, including compensation for pain and suffering Include:medical bills, lost wages, property repair bills, and compensation for pain and suffering.

Probable cause

Reasonable inference from available facts and circumstances that the suspect committed the crime

State's power

Reserved by the 10h Amendment is sovereign - it is an ultimate power with which the federal government cannot interfere

Rules of civil procedure

Rules governing proceedings in a civil case (Criminal cases are governed by the rules of criminal procedure)

PreTrial Stage

Rules of Civil Procedure, Informal Negotiations, Initiation of legal action - Pleadings, Service of Process, Defendant's response, Discovery, Pretrial Conference

Larceny

Secretive and wrongful taking and carrying away of the personal property of another with the intent to permanently deprive the rightful owner of its use or possession (may be street crime or white collar crime)

Communication Decency Act - Safe Harbor Protection

Section 230: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Interrogatories

Series of written questions sent to the opposing party, who must answer them truthfully and under oath. (written)

Felonies

Serious Crimes Punishable by death or imprisonment

Malpractice suits

Service liability suits brought against professionals, based on a theory of negligence, breach of contract, or fraud

Note on Administrative Agency powers:

Some entities complain that permitting administrative agencies to exercise legislative, executive, and judicial power violates the spirit of the Constitution. The Office of Management and Budget (OMB) has influence over all rulemaking, since it recommends annual budgets to the Congress for administrative agencies.

Nominal Damages (Tort)

Sometimes the plaintiff is unable to prove damages that would necessitate compensation-In such cases the court awards the victim nominal damages. Recovery of them enables the plaintiff to seek punitive damages. Punitive damages accompany an award of compensatory or nominal damages. Purpose: To recognize that the plaintiff has been wronged Amount: A small Amount, usually $1-$5

Federal Supremacy

Sometimes the power of the federal and state governments to pass laws overlap, and they both have the power to pass laws regarding a certain matter However, under the Supremacy Clause, a state law may be preempted by a federal law.

Slander

Spoken defamatory statement

Negligent Tort (Duty)

Standard of care that the defendant owes the plaintiff Reasonable person standard

Basics - Statutory Law

Statues are passed through Congressional Vote

The Legislative Branch

Statutory Law

Independent Administrative Agencies

Technically under the Executive Branch, but as "independent" bodies, they are not as firmly situated under the Executive branch as an Executive Administrative Agency. Like the FTC and the SEC, appoint heads and members to serve for fixed terms and cannot be removed by the president except for reasons defined by Congress.

Personal Jurisdiction in Cyberspace

The "Sliding Scale" Standard Passive Website - NO Some Interactivity through a Website - DEPENDS Substantial Business Interaction - YES

The Legislative Branch (State Level)

The California State Legislature (State Assembly and State Senate) creates statutory law

Discovery

The Pretrial Gathering of information from each other by the parties. Involves: Interrogatories, Requests for admission, Requests for production, and Deposition.

Supremacy Clause

The U.S. Constitution and all laws and treaties of the United States constitute the supreme law of the land -Article VI of the Constitution

CONFLICT OF LAWS FULL

The U.S. Constitution trumps all other laws (federal and state), and each state's constitution trumps all other laws within that particular state. Federal constitutional, statutory, and administrative law trumps all state law. When federal law trumps state law, the legal phrase is that federal law has "preempted" the state law under the doctrine of "preemption," which arises from the Constitution's Supremacy Clause. Federal case law interpreting federal law trumps state law. Federal case law interpreting state law (in diversity of jurisdiction cases) is required by the Erie Doctrine to comply with that state's interpretation of the law. Thus, in diversity cases, state law trumps federal case law if a conflict arises. Within each system (federal or state), statutory law trumps administrative law Within each system (federal or state), statutory law trumps case law, unless the case law is a ruling on the constitutionality of the statutory law. Within each system (federal or state), administrative law trumps case law, unless the case law is ruling on the constitutionality of the administrative law or on the applicability of a superior law that conflicts with the statutory law (e.g. a case determining that an administrative law exceeded the scope of its power under a statute, or is rendered invalid by new statutory law.)

Personal Jurisdiction (based on the defendant's location or contacts) exists in situation of Human Defendant when:

The defendant is actually located in the state when served with the lawsuit. (Dancing) The defendant is a resident in the state (Domicile) The defendant has sufficient "minimum contacts" with the state (e.g. does business in the state, directs advertising toward the state). (Doing business)

Burden of Proof

The duty to prove a claim(s) or defense(s) using evidence. Rests on the prosecutor not the defendant; the defendant is not required to "prove" that he or she is innocent; If the prosecutor fails to prove guilt, the defendant wins, even if the defendant were to offer no evidence at all; Although sometimes, a defendant may have the duty to prove a defense; ex. Self Defense. Includes the Burden of Production of Evidence and Burden of Persuasion.

Field Preemption

The federal government regulates an areas so pervasive that Congress's intent that only federal law regulate that area is clear.

Pretrial Stage (long explained)

The first step of a businessperson involved in a dispute should be to discuss the dispute directly with the other party. The businessperson can proceed to discuss with an attorney when the initial negotiations do not work out. When the attorney is aware of all the relevant information, he/she may be able to resolve the dispute informally with the other party, along with his/her client. The parties enter the pleading stage of the lawsuit when informal resolution does not work out. Pleadings are papers filed by a party in court and then served on the opponent. The basic pleadings are the complaint, the answer, the counterclaim, and the motion to dismiss. A complaint is a document that states the names of the parties to the action, the basis for the court's subject matter jurisdiction, the facts on which the party's claim is based, and the relief that the party is seeking. Once the complaint is filed, the court serves a copy of the complaint and a summons on the defendant. The response of the defendant may include an answer to the allegations of the plaintiff, and possibly, a counterclaim. The answer must admit, deny, or state that the defendant has no knowledge about the truth of each of the plaintiff's allegations. The answer may also contain affirmative defenses. A defendant may believe that even if all of the plaintiff's factual allegations were true, the plaintiff would still not be entitled to a favorable judgment. In that situation, the defendant may file a motion to dismiss. Motions to dismiss are not readily accepted in court. It must be proved beyond a doubt that the plaintiff cannot provide facts to substantiate their claim. A defendant may make a counterclaim to show his/her cause for action against the plaintiff and may request for appropriate relief. The plaintiff can file a reply to the counterclaim.

Complaint

The pleading filed by the plaintiff. A document that states the names of the parties to the action, the basis for the court's subject matter jurisdiction, the facts on which the party's claim is based, and the relief that the party is seeking.

Regulations

The rules created by agencies

Police Power

The states sovereign power is called this. Power to protect and promote the health, safety, and welfare of its citizens.

The term injury relating to damages

The term "injury" in this context is broad, and potentially includes bodily harm, property damage, financial loss, emotional distress, the loss of rights, and injury to one's reputation. The party who caused the injury is ordered to pay the damages.

What are the Vast Majority of Criminal Prosecutions?

The vast majority of criminal prosecutions are state prosecutions in state court for violations of state law. A state's power to pass laws prohibiting criminal behavior arises from the state's police power.

Alternative rules to determine accountant's liability to third parties:

Ultramares Doctrine Section 552 of the Restatement (Second) of Torts (Followed by California courts) Reasonable foreseeable rule

Resolution of Issue (Dormant Commerce Clause)

Using balancing test, court determines if states exercise of police power affects interstate commerce to violate "The Dormant Commerce Clause" Court's often look to see whether the state has a protectionist motivation (e.g. protecting businesses headquartered in the states at the expense of out of state businesses).

Executive Administrative Agencies

Usually located within a department of the executive branch of government where all appointed members serve the president. The Occupational Safety and Health Administration (OSHA), which is located in the Department of Labor, is an example of such an agency. President has power to appoint and remove officers of executive agencies and may issue executive orders delegating executive power to agencies.

Implied Warranty

Warranty that automatically arises out of a transaction: -Of merchantability -Of fitness for a particular purpose

Express Warranty

Warranty that is clearly stated by the seller or manufacturer

Bribery

White Collar Crime. Offering, giving, soliciting, or receiving of money or any object of value for the purpose of influencing the judgment or conduct of a person in a position of trust, especially a government official

Embezzlement

White Collar Crime. Wrongful conversion of the property of another by one who is lawfully in possession of that property

Exclusive Jurisdiction in Federal Courts

bankruptcy, patent, copyrights, admiralty law, states suing each other

Commerce Clause (Supreme Court Interpretation)

broadened during 1930s to allow a greater scope for federal regulations. Over the next several decades, the Supreme Court continued to expand Congress's power under the Commerce Clause to regulate intrastate activities that affect interstate commerce.

Jurisdiction Over Persons (or Property)

determining which state territory(ies) include courts having jurisdiction in your case, based on the location of either the defendant(s) or the property Must have jurisdiction: "in personam" or "in rem" (You may have options in more than one state; you may file your lawsuit in any state that has personal jurisdiction or in rem jurisdiction.)

Federal Crimes

involve some kind of federal issue. Congress's power to pass laws prohibiting criminal behavior arises from the Constitution.

If there is no Personal Jurisdiction based on the defendant's location or contacts:

jurisdiction "over the property" (In Rem) will satisfy this requirement if the lawsuit involves an interest in property within the state (e.g. a parcel of land, building, or docked boat exists in the state).

Independent administrative agencies

like the FTC and the SEC, appoint heads and members to serve for fixed terms and cannot be removed by the president except for reasons defined by Congress.

Appellate court actions

not inclined to question the jury's factual determinations. They may affirm, modify, or reverse the lower court decision or/and remand the case back to the lower court with instructions.

Commercial Speech

not protected as much as Political Speech. A law regulating this will not violate the First Amendment if the government interest to be served by the law is "substantial," and if the law "directly advances the government interest" and is "not more extensive than necessary."

Deposition

proceeding in which a witness is examined under oath by the party or the party's attorney

Jury

reviews the evidence and decides questions of fact

No Mens Rea Required

state of mind is irrelevant. In other words, a party responsible for conduct (or refraining from conduct) may be guilty based on strict liability. Punishment is less severe

Strict scrutiny test

the law must serve a "compelling government interest," and it must be "narrowly tailored" to achieve that interest by the "least restrictive means."

Political Speech

the most protected form of speech. A law regulating this must pass the strict scrutiny test.

Proving Slander

the plaintiff must prove "special" damages, which means that to recover damages, the plaintiff must demonstrate an actual monetary loss resulting or flowing from the slanderous statement. The exception to this limitation on damages is for statements that constitute slander per se. These are statements that are considered by their very nature to be so obviously harmful to a person that no proof of special damages is needed. Traditionally, statements are considered slander per se if they are statements that say (1) one has a loathsome communicable disease; (2) one has committed improprieties in the performance of his or her profession; (3) one has committed or been imprisoned for a serious crime; and (4) an unmarried female is not chaste.