BUS 2030 Chapters 1-4 & 6 Test Outline

Uniform Commercial Code

(UCC), which was created through the joint efforts of the NCCUSL and the American Law Institute. The UCC was first issued in 1952 and has been adopted in all fifty states, the District of Columbia, and the Virgin Islands.

Reasonable Restrictions

- A balance must be struck between a government's obligation to protect its citizens and those citizens' exercise of their rights. Expression— oral, written, or symbolized by conduct—is therefore subject to reasonable restrictions. Reasonableness is analyzed on a case-by-case basis.

Freedom of Speech

- A democratic form of government cannot survive unless people can freely voice their political opinions and criticize government actions or policies. Freedom of speech, particularly political speech, is thus a prized right, and traditionally the courts have protected this right to the fullest extent possible.

Fraudulent Misrepresentation

- A misrepresentation leads another to believe in a condition that is different from the condition that actually exists. Although persons sometimes make misrepresentations accidentally because they are unaware of the existing facts, the tort of fraudulent misrepresentation (fraud), involves intentional deceit for personal gain. The tort includes several elements: 1. A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth. 2. An intent to induce another party to rely on the misrepresentation. 3. A justifiable reliance on the misrepresentation by the deceived party. 4. Damages suffered as a result of that reliance.

Standing to Sue

- A party must have a sufficient stake in the dispute to justify seeking relief through the court system. Standing has three elements: Harm, Causation, Remedy

Compensatory Damages

- A plaintiff is awarded compensatory damages to compensate or reimburse the plaintiff for actual losses. Thus, the goal is to make the plaintiff whole and put her or him in the same position that she or he would have been in had the tort not occurred. Compensatory damages awards are often broken down into special damages and general damages.

Assumption of Risk

- A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. This is the defense of assumption of risk, which requires two elements: 1. Knowledge of the risk. 2. Voluntary assumption of the risk.

(Intentional Torts Against Property) Trespass to Land

- A trespass to land occurs when a person, without permission, does any of the following: 1. Enters onto, above, or below the surface of land that is owned by another. 2. Causes anything to enter onto land owned by another. 3. Remains on land owned by another or permits anything to remain on it.

Comparative Negligence

- All individuals are expected to exercise a reasonable degree of care in looking out for themselves. In the past, under the common law doctrine of contributory negligence, a plaintiff who was also negligent (who failed to exercise a reasonable degree of care) could not recover anything from the defendant.

Superseding Cause

- An unforeseeable intervening event may break the causal connection between a wrongful act and an injury to another. If so, the intervening event acts as a superseding cause—that is, it relieves the defendant of liability for injuries caused by the intervening event.

Causation

- Another element necessary to a negligence action is causation. If a person breaches a duty of care and someone suffers injury, the person's act must have caused the harm for it to constitute the tort of negligence.

Conversion

- Any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause can constitute conversion.

The Taxing and Spending Powers

- Article I, Section 8, of the U.S. Constitution, ​provides that Congress has the "Power to lay and collect Taxes, Duties, Imposts, and Excises." Section 8 further requires uniformity in taxation among the states, and thus Congress may not tax some states while exempting others.

The Full Faith and Credit Clause

- Article IV, Section 1, of the U.S. Constitution provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." This clause, which is referred to as the full faith and credit clause, applies only to civil matters. It ensures that rights established under deeds, wills, contracts, and similar instruments in one state will be honored by other states.

The Privileges and Immunities Clause

- Article IV, Section 2, of the Constitution, provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This clause is often referred to as the interstate privileges and immunities clause.3 It prevents a state from imposing unreasonable burdens on citizens of another state—particularly with regard to means of livelihood or doing business.

The Supremacy Clause and Federal Preemption

- Article VI of the U.S. Constitution, commonly referred to as the supremacy clause, provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." When there is a direct conflict between a federal law and a state law, the state law is rendered invalid. Because some powers are concurrent (shared by the federal government and the states), however, it is necessary to determine which law governs in a particular circumstance.

Damages Available in Tort Actions

- Because the purpose of tort law is to compensate the injured party for the damage suffered, you need to have an understanding of the types of damages that plaintiffs seek in tort actions. Note that legal usage distinguishes between the terms damage and damages. Damage refers to harm or injury to persons or property, while damages refers to monetary compensation for such harm or injury.

Service of Process

- Before the court can exercise personal jurisdiction over the defendant—in effect before the lawsuit can begin—the court must have proof that the defendant was notified of the lawsuit. Formally notifying the defendant of a lawsuit is called service of process.

Due Process

- Both the Fifth and Fourteenth Amendments provide that no person shall be deprived "of life, liberty, or property, without due process of law." The due process clause of these constitutional amendments has two aspects—procedural and substantive. Note that the due process clause applies to "legal persons" (that is, corporations), as well as to individuals.

Wrongful Interference with a Business Relationship

- Businesspersons devise countless schemes to attract customers. They are prohibited, however, from unreasonably interfering with another's business in their attempts to gain a greater share of the market.

The Duty of Care and its Breach

- Central to the tort of negligence is the concept of a duty of care. The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others. When someone fails to comply with the duty to exercise reasonable care, a potentially tortious act may have been committed.

Commercial Speech

- Communications made by business firms that involve only their commercial interests.

Interrogatories

- Discovery can also involve interrogatories—written questions for which written answers are prepared and then signed under oath. The main difference between interrogatories and written depositions is that interrogatories are directed to a party to the lawsuit​ (the plaintiff or the defendant), not to a witness. The party usually has thirty days to prepare answers.

Corporate Political Speech

- Expression that deals in some fashion with government, government issues or policies, public officials, or political candidates.

Injury Requirement and Damages

- For tort liability to arise, the plaintiff must have suffered a legally recognizable injury. To recover damages, the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest. Essentially, the purpose of tort law is to compensate for legally recognized harms and injuries resulting from wrongful acts. If no harm or injury results from a given negligent action, there is nothing to compensate, and no tort exists.

The Purpose of Tort Law

- Generally, the purpose of tort law is to provide remedies for the violation of various protected interests. Society recognizes an interest in personal physical safety. Thus, tort law provides remedies for acts that cause physical injury or that interfere with physical security and freedom of movement. Society also recognizes an interest in protecting property, and tort law provides remedies for acts that cause destruction of or damage to property.

Negotiation

- Informal settlement talks, sometimes without attorneys, where differences are discussed with the goal of "meeting of the minds" in resolving the case.

Duty of Landowners

- Landowners are expected to exercise reasonable care to protect individuals coming onto their property from harm. In some jurisdictions, landowners may even have a duty to protect trespassers against certain risks. Landowners who rent or lease premises to tenants are expected to exercise reasonable care to ensure that the tenants and their guests are not harmed in common areas, such as stairways, entryways, and laundry rooms.

Punitive Damages

- Occasionally, the courts also award punitive damages in tort cases to punish the wrongdoer and deter others from similar wrongdoing. Punitive damages are appropriate only when the defendant's conduct was particularly egregious (flagrant) or reprehensible (blameworthy).

Duty of Professionals

- Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others. Professionals—including physicians, dentists, architects, engineers, accountants, and lawyers, among others—are required to have a standard minimum level of special knowledge and ability.

Procedural Due Process

- Procedural due process requires that any government decision to take life, liberty, or property must be made equitably.

(Courts ask two questions) Proximate Cause

- Proximate cause, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability.

Foreseeability

- Questions of proximate cause are linked to the concept of foreseeability because it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury. Generally, if the victim or the consequences of a harm done were unforeseeable, there is no proximate cause.

Duty to Warn Business Invitees of Risks

- Retailers and other business operators who explicitly or implicitly invite persons to come onto their premises have a duty to exercise reasonable care to protect these business invitees. The duty normally requires storeowners to warn business invitees of foreseeable risks, such as construction zones or wet floors, about which the owners knew or should have known.

Obvious Risks Provide an Exception

- Some risks are so obvious that an owner need not warn of them. For instance, a business owner does not need to warn customers to open a door before attempting to walk through it.

Substantive Due Process

- Substantive due process focuses on the content of legislation rather than the fairness of procedures.

Freedom of Religion

- The First Amendment states that the government may neither establish any religion nor prohibit the free exercise of religious practices. The first part of this constitutional provision is referred to as the establishment clause, and the second part is known as the free exercise clause. Government action, both federal and state, must be consistent with this constitutional mandate.

Searches and Seizures

- The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects."

Right to a Jury Trial

- The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial for cases at law in federal courts when the amount in controversy exceeds $20.

Relations among the States

- The U.S. Constitution also includes provisions concerning relations among the states in our federal system. Particularly important are the privileges and immunities clause and the full faith and credit clause.

Unprotected Speech

- The United States Supreme Court has made it clear that certain types of speech will not be protected under the First Amendment. Unprotected speech includes fighting words​ or words that are likely to incite others to respond violently. It also includes speech that harms the good reputation of another or defamatory speech. In addition, speech that violates criminal laws (threatening speech or possession of child pornography, for instance) is not constitutionally protected.

The Publication Requirement

- The basis of the tort of defamation is the publication of a statement or statements that hold an individual up to contempt, ridicule, or hatred. Publication here means that the defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party.

A Federal Form of Government

- The new government created by the U.S. Constitution reflected a series of compromises made by the convention delegates on various issues. Some delegates wanted sovereign​ power to remain with the states. Others wanted the national government alone to exercise sovereign power. The end result was a compromise—a federal form of government in which the national government and the states share sovereign power.

Discovery

- The pretrial litigation process involves the filing of the pleadings, the gathering of evidence (called discovery), and possibly other procedures, such as a pretrial conference and jury selection.

Wrongful Interference

- The torts known as business torts generally involve wrongful interference with another's business rights. Public policy favors free competition, and these torts protect against tortious interference with legitimate business. Business torts involving wrongful interference generally fall into two categories: interference with a contractual relationship and interference with a business relationship.

Wrongful Interference with a Contractual Relationship

- Three elements are necessary for wrongful interference with a contractual relationship to occur: 1. A valid, enforceable contract must exist between two parties. 2. A third party must know that this contract exists. 3. This third party must intentionally induce a party to the contract to breach the contract.

The Commerce Clause

- To prevent states from establishing laws and regulations that would interfere with trade and commerce among the states, the Constitution expressly delegated to the national government the power to regulate interstate commerce. Article I, Section 8, of the U.S. Constitution,​ explicitly permits Congress "o regulates Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This clause, referred to as the commerce clause, has had a greater impact on business than any other provision in the Constitution. The commerce clause provides the basis for the national government's extensive regulation of state and even local affairs.

The Reasonable Person Standard

- Tort law measures duty by the reasonable person standard. In determining whether a duty of care has been breached, the courts ask how a reasonable person would have acted in the same circumstances.

Defenses to Defamation

- Truth is normally an absolute defense against a defamation charge. In other words, if a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed.

The Defendant's Response

- Typically, the defendant's response to the complaint takes the form of an answer. In an answer, the defendant either admits or denies each of the allegations in the plaintiff's complaint and may also set forth defenses to those allegations.

Equal Protection

- Under the Fourteenth Amendment, a state may not "deny to any person within its jurisdiction the equal protection of the laws." The United States Supreme Court has interpreted the due process clause of the Fifth Amendment to make the equal protection clause applicable to the federal government as well. Equal protection means that the government cannot enact laws that treat similarly situated individuals differently.

Arbitration

- Utilizes an arbitrator (a neutral third party or a panel of experts) who hears a dispute and imposes a resolution on the parties.

Mediation

- Utilizes the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

Civil Law

- a legal system based on a written code of laws;

(Intentional Torts against Persons) Battery

- an unexcused and harmful or offensive physical contact intentionally performed.

The Free Exercise Clause

- guarantees that people can hold any religious beliefs they want or can hold no religious beliefs. The constitutional guarantee of personal freedom restricts only the actions of the government, however, and not those of individuals or private businesses.

(Intentional Torts against Persons) Assault

- is any intentional and unexcused threat of immediate harmful or offensive contact—words or acts the First Amendment's guarantee of freedom of speech also limits emotional distress claims.

False Imprisonment

- is the intentional confinement or restraint of another person's activities without justification. False imprisonment interferes with the freedom to move without restraint. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force.

The Establishment Clause

- prohibits the government from establishing a state sponsored​ religion, as well as from passing laws that promote (aid or endorse) religion or show a preference for one religion over another. Although the establishment clause involves the separation of church and state, it does not require a complete separation.

(Procedural Rules) Hire an Attorney

- rules of procedure often affect the outcome of a dispute - a fact that highlights the importance of obtaining the advice of counsel. The first step taken by almost anyone contemplating a lawsuit is to seek the guidance of a licensed attorney.

(Procedural Rules) Stages of Litigation

- the litigation process has three phases: pretrial, trial, and post-trial.

(Courts ask two questions) Causation in Fact

- usually can be determined by use of the but for test: "but for" the wrongful act, the injury would not have occurred.

Types of Attorneys' Fees

1. Fixed fees may be charged for the performance of such services as drafting a simple will. 2. Hourly fees may be charged for matters that will involve an indeterminate period of time. The amount of time required to bring a case to trial. 3. Contingency fees are fixed as a percentage (usually 33 percent) of a client's recovery in certain types of lawsuits, such as a personal injury lawsuit. If the lawsuit is unsuccessful, the attorney receives no fee, but the client will have to reimburse the attorney for all out-of-pocket costs incurred.

Jurisdiction over Persons or Property

1. Long Arm Statutes and Minimum Contacts 2. Corporate Contacts

Alternative Dispute Resolution

1. Negotiation 2.Mediation 3.Arbitration

Jurisdiction over Subject Matter

1. Original and Appellate Jurisdiction 2. Federal Questions 3. Diversity of Citizenship

Doctrine of Stare Decisis

1.Case Precedents and Case Reporters 2. Stare Decisis and the Common Law Tradition 3. Controlling Precedents 4. Stare Decisis and Legal Stability 5. When there is no Precedent

Diversity of Citizenship

A basis for federal court jurisdiction over a lawsuit between (1) citizens of different states (2) a foreign country and citizens of a state of different states, or (3) citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal court can take jurisdiction.

Federal Questions

A question that has to do with the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

Corporate Contacts

Because corporations are considered legal persons, courts use the same principles to determine whether it is fair to exercise jurisdiction over a corporation. A corporation normally is subject to personal jurisdiction in the state in which it is incorporated, has its principal office, and/or is doing business.

Depositions -

Discovery can involve the use of depositions. A deposition is sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official. The person deposed gives testimony and answers questions asked by the attorneys from both sides. The questions and answers are recorded, sworn to, and signed.

(Enforcing the Judgment) Requesting Court Assistance in Collecting the Judgment -

If the defendant does not have the funds available to pay the judgment, the plaintiff can go back to the court and request that the court issue a writ of execution. A writ of execution is an order directing the sheriff to seize and sell the defendant's nonexempt assets, or property (certain assets are exempted by law from creditors' actions). The proceeds of the sale are then used to pay the damages owed, and any excess proceeds are returned to the defendant. Alternatively, the nonexempt property itself could be transferred to the plaintiff in lieu of an outright payment.

Content-Neutral Laws -

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

Legal and Equitable Remedies Today

Legal remedies allow the non-breaching party to recover monetary damages. In contrast, equitable remedies are non-monetary solutions to resolve the disputed issue; Equitable remedies are a distinct category of remedies that can be obtained in a breach of contract situation. Equitable remedies are actions that the court prescribes which will serve to resolve the breach or dispute.

When There Is No Precedent

Occasionally, courts must decide cases for which no precedents exist, called cases of the first impression. For instance, the Internet and certain other technologies have presented many new and challenging issues for the courts to decide.

Statement of Fact Requirement -

Often at issue in defamation lawsuits (including online defamation) is whether the defendant made a statement of fact or a statement of opinion. Statements of opinion normally are not actionable, because they are protected under the First Amendment.

Controlling

Precedents that must be followed within a jurisdiction are called controlling precedents. Controlling precedents are a type of binding authority. A binding authority is any source of law that a court must follow when deciding a case.

Administrative Law

The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

Statutory Law

The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

(Pretrial Procedures) The Pleadings

The complaint and answer are known as the pleadings. The pleadings inform each party of the other's claims, reveal the facts, and specify the issues (disputed questions) involved in the case.

The Plaintiff's Complaint

The complaint contains statements or allegations concerning the following: 1. Jurisdiction. Facts showing that the particular court has subject-matter and personal jurisdiction. 2. Legal theory. The facts establishing the plaintiff's 3. Remedy. The remedy (such as an amount of damages) that the plaintiff is seeking.

Original and Appellate Jurisdiction

The distinction between courts of original jurisdiction and courts of appellate jurisdiction normally lies in whether the case is being heard for the first time. Courts having original jurisdiction are courts of the first instance or trial courts. These are courts in which lawsuits begin, trials take place, and evidence is presented. In the federal court system, the district courts are trial courts. In the various state court systems, the trial courts are known by various names.

Stare Decisis and Legal Stability

The doctrine of stare decisis helps the courts to be more efficient because, if other courts have analyzed a similar case, their legal reasoning and opinions can serve as guides. Stare decisis also makes the law more stable and predictable. If the law on a subject is well settled, someone bringing a case can usually rely on the court to rule based on what the law has been in the past.

Venue

The most appropriate geographical location for a trial to be held and from which a jury is selected.

Stare Decisis and the Common Law Tradition

The practice of deciding new cases with reference to former decisions, or precedents, became a cornerstone of the English and American judicial systems. The practice formed a doctrine known as stare decisis, a Latin phrase meaning "to stand on decided cases."

Judicial Review

The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch.

Appeals to the Supreme Court

To bring a case before the Supreme Court, a party requests the Court to issue a writ of certiorari. A writ of certiorari is an order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review. The Court will not issue a writ unless at least four of the nine justices approve of it. This is called the rule of four.

Uniform Law

Uniform model laws for states to consider adopting. Developed to counter the ​problem of conflicting state statutes.

Case Precedents and Case Reporters

When possible, judges attempted to be consistent and to base their decisions on the principles suggested by earlier cases. They sought to decide similar cases in a similar way, and they considered new cases with care because they knew that their decisions would make new law. Each interpretation became part of the law on the subject and thus served as a legal precedent. A precedent is a decision that furnishes an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.

(The Trial) Rules of Evidence

Whether evidence will be admitted in court is determined by the rules of evidence. These are a series of rules that the courts have created to ensure that any evidence presented during a trial is fair and reliable. The Federal Rules of Evidence govern the admissibility of evidence in federal courts.

Constitutional Law

a law that involves the interpretation and application of the U.S. Constitution and state constitutions.

Long Arm Statutes and Minimum Contacts

a statute that extends a state's jurisdiction to nonresidents who were not served a summons within the state, permitted over nonresidents who have committed torts with the state, entered into a contract in the state, transacted other business in the state that allegedly caused injury to another person

Case Law

a system of jurisprudence based on judicial precedents rather than statutory laws;

Common Law Doctrines

a system of law based on precedent and customs;

State Court System

i. Trial Courts ii. Appellate, or Reviewing, Courts iii. Highest State Courts

The Federal court System

i. U.S. District Courts ii. U.S. Court of Appeals iii. United States Supreme Court

Criminal Law

law concerned with public wrongs against society;

Jurisdiction

power to make legal decisions or to handle a legal matter/incident.

Defamation

​ - The freedom of speech guaranteed by the First Amendment is not absolute. The courts are required to balance the vital guarantee of free speech against other a pervasive and strong social interests, including society's interest in preventing and redressing attacks on reputation.

Evidence must be relevant to the issues -

​ Evidence will not be admitted in court unless it is relevant to the matter in question. Relevant evidence is evidence that tends to prove or disprove a fact in question or to establish the degree of probability of a fact or action. For instance, evidence that the defendant was in another per- son's home when the victim was shot would be relevant, because it would tend to prove that the defendant was not the shooter.