BUSA FINAL

Fair Use Doctrine

"Fair use" is the right of the public to make reasonable use of copyrighted material in special circumstances without the Copyright Owner's Permission. The United States Copyright Act recognizes that fair use of a copyrighted work may be used "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research." Factors to be considered include (1) the purpose and character of the use, including whether the use is for a commercial purpose or is for non-profit educational purposes; (2) what kind of work is the copyrighted work (for instance, is it creative or factual); (3) the amount and importance of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential commercial market for or value of the copyrighted work. Whether or not a fair use has been made of a copyrighted work is not always easy to determine and there have been many lawsuits to determine whether or not a use is "fair." Where there is doubt about whether something qualifies for the fair use exception, you should request a License from the Copyright Holder. Below are some examples of cases involving the defense of fair use: 1. The court held that a book of trivia questions about the "Seinfeld" TV program was not fair use. Although the book was transformative, the TV program was a work of fiction accorded special status under copyright law. The book drew upon essential elements of the TV program, and occupied a market for a derivative work that the Copyright Holder was entitled to control. Castle Rock Entertainment v. Carol Pub. Group, Inc., 955 F. Supp. 260 (S.D.N.Y. 1997), aff'd, 150 F.3d 132 (2d Cir. 1998). 2. The court held that the use in a TV biography about Muhammed Ali of up to 14 film clips of historical footage, each between 41 seconds and two minutes long, was likely to be fair use. Ali was a public figure and his TV biography was the subject of public interest. The allegedly Infringing film clips were not the focus of documentary and were not particularly noticeable, and use of the film clips was not likely to the undercut market for a motion picture. Monster Communications, Inc. v. Turner Broadcasting System, Inc., 935 F. Supp. 490 (S.D.N.Y. 1996). 3. The court held that a parody of the song "I Love New York" performed in a skit on "Saturday Night Live" poking fun at New York City's public relations campaign and its theme song was a protected fair use. Elsmere Music, Inc. v. NBC, 623 F.2d 252 (2d Cir. 1980). 4. The court held that that use of copyrighted music played during a parade that happened to be televised by ABC was a fair use. Italian Book Corp. v. ABC, Inc., 458 F. Supp. 65 (S.D.N.Y 1978).

Jointly and Severally Liable (공동이든 별개이든 상관없이 모두.) / Jointly Liable (Partnerships)

(in tort liability: 법적책임) Jointly Liable: In a partnership, all partners (owners) have joint liability. Any action pertaining to the partnership is taken jointly against all partners, and not against one or the other of them. Jointly and Severally Liable: Together and in separation liability. In joint and several agreements, the liability for default is enforceable against all of the signatories as a group (not necessarily on a proportional or pro-rata basis), or against any one of them as an individual at the choice of the enforcing party.

Union Solicitation (employee, non-employee, off duty employee) (조합권유, 유도) (One-on-One Solicitation (Organizer-Employee; Employee-Employee))

1 Prohibit solicitation by any organization on company property at any time 2 Prohibit distribution of advertising materials handbills, or other literature on company property 3 Prohibit solicitation by employees using company email system 4 Enforce a "No-Access" rule for off-duty employees 5 Require employees to leave work areas, buildings, and parking lots at the end of their shift

Termination of an offer (철회, 만기, 종결)

1) Revocation by offeror 신청인의 취소,철회 2) Rejection on offeror 3) counter offer by offeree(피신청인) 4) Death 5) Totally destroy

Statute of Frauds

1) contracts involving an interest in land 2) one-year rule: terms agreement must be written. 3) collateral promises (담보물, 부수적인) 4) contracts for the sale of goods 5) agent's contract 6) promissory estoppel: (금반언원칙) oral, should have been in writing. 7) formality of writing: must be writing. 8) required signature.

Cumulative dividend rights (누적배당: 어느 기간에 있어서 지불되지 않는 배당은 장래에 지불된다. 누적우선주에 대한 배당)

A cumulative dividend is a right associated with certain preferred shares of a company. A fixed amount or a percentage of a share's par value must be remitted periodically to shareholders who own these shares without regard to the company's earnings or profitability. A cumulative dividend must be paid, whereas a regular dividend, also called a non-cumulative dividend, may be paid to or withheld from shareholders at the company's discretion.

Commercial Speech

1. Commercial Speech (What you advertise can be limited) a. Cannot be prohibited (Alcohol, Tobacco) b. Can be restricted (Ads after 9:00PM)

Joint Venture and Strategic Alliance

1. Joint Venture a. A arrangement when two or more businesses combine their resources to accomplish a single project. 2. Strategic Alliance a. (Arrangement between two or more business es in the same industry where they agree to become friends (allies) in order to accomplish a designated objective.

Copyrights (What are the terms of a copyright?) (저작권, 판권)

A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. The duration of copyright protection depends on several factors. For works created by an individual, protection lasts for the life of the author, plus 70 years. For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

In personam jurisdiction (Literally, "against the person.") (소송 절차 따위가) 대인(對人)의, 대인적인, 사람에 대한(against a person).

A court with jurisdiction over a particular location may exercise in personam jursidiction over a person who resides, maintains connections, or is served notice of legal proceedings in that location. It may also exercise jurisdiction over a person who consents to be subject to it. i. Automatically have jurisdiction over the plaintiff ii. Plantiff filed the lawsuit so automatic jurisdiction over him/her iii. Defendant must be served with a summons. iv. After being served with a summons the court has jurisdiction over the defendant.

Statute of Frauds (사기방지법)

A legal concept that requires certain types of contracts to be executed in writing. The precise form of the Statute of Frauds varies between jurisdictions, but generally requires a writing for the following types of contracts: (1) Contracts for the sale of land; (2) Contracts for the sale of goods above a certain dollar amount; (3) Contracts that cannot be completed in less than one year; and (4) Contracts where one party is to pay the debt of another party. In a breach of contract case where the statute of frauds applies, the defendant may raise it as a defense. In this case, the burden of proof is on the plaintiff to establish that a valid contract was in existence.

What are the requirements for a patent?

A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention. Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions A patent grants the patent holder the exclusive right to exclude others from making, using, importing, and selling the patented innovation for a limited period of time. The U.S. Patent Act, 35 U.S.C. §§ 1 et seq., was enacted by Congress under its Constitutional grant of authority to secure for limited times to inventors the exclusive right to their discoveries. See Article I, Section 8, Clause 8. Granting exclusive rights to the inventor is intended to encourage the investment of time and resources into the development of new and useful discoveries. In exchange for this limited monopoly, immediate disclosure of the patented information to the U.S. Patent and Trademark Office (PTO) is required. Once the term of protection has ended, the patented innovation enters the public domain. The five primary requirements for patentability are: (1) patentable subject matter(The innovation is patentable subject matter), (2) utility (The innovation is useful), (3) novelty (The innovation is new), (4) non obviousness (The innovation is inventive), and (5) enablement (The innovation must not have prior use).

Dividend Preference (우선배당)

A preferred dividend is a dividend that is accrued and paid on a company's preferred shares. In the event that a company is unable to pay all dividends, claims to preferred dividends take precedence over claims to dividends that are paid on common shares. The main benefit of preferred stock is that it typically pays much higher dividend rates than common stock of the same company.

Quasi Contract

A quasi contract is a contract that exists by order of a court, not by agreement of the parties. Courts create quasi contracts to avoid the unjust enrichment of a party in a dispute over payment for a good or service. In some cases a party who has suffered a loss in a business relationship may not be able to recover for the loss without evidence of a contract or some legally recognized agreement. To avoid this unjust result, courts create a fictitious agreement where no legally enforceable agreement exists.

Compensatory damages (Remedies-monetary damages) (보상적 손해배상:손해에 상응하는 액수만을 보상하게 하는 손해배상방식)

A sum of money awarded in a civil action by a court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. In order to be awarded compensatory damages, the plaintiff must prove that he or she has suffered a legally recognizable harm that is compensable by a certain amount of money that can be objectively determined by a judge or jury.

Trademark (What are the terms of a trademark?)

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include: brand names, slogans, and logos. The term "trademark" is often used in a general sense to refer to both trademarks and service marks. Unlike patents and copyrights, trademarks do not expire after a set term of years. Trademark rights come from actual "use" (see below). Therefore, a trademark can last forever - so long as you continue to use the mark in commerce to indicate the source of goods and services. A trademark registration can also last forever - so long as you file specific documents and pay fees at regular intervals. Protects names, slogans, logos.every 15 years can keep renewing. (trademarks, service marks, certification marks, collective marks) can be protected.

Treaty (조약)

A treaty is a written agreement between countries in which they agree to do a particular thing or to help each other. A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same. Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law.

proxy

A written document signed by a shareholder that authorizes another person to vote the shareholders shares: also called a proxy card.

Requirement for creating a Limited Partnership

A. Limited Liability Partnership a. Created by state law also b. State law is one created by state legislature hwever some states may adopt Revise Uniform LLp act c. States that authorize this operation from limit this to professional groups. d. Partners in LLp they all have Limited Liability. e. Articles of Partnership i. In the state in which you file your articles you may ii. In the state which you file the article syou are domestic LLP iii. The state in which you do business in but are not filed there tyhen you are a foreign LLP iv. Required to have Liabilty Insurance. v. All Partners have Limited Liability

Assault (공갈, 폭행, 구타 the crime of attacking someone and causing them physical harm.)

Although colloquially used interchangeably, in many jurisdictions, assault and battery are distinct crimes. In such jurisdictions, assault (also called attempted battery) is a threat or physical act that creates a reasonable apprehension of imminent harmful or offensive contact.

Define a Partnership

An association of two or more persons engaged in a business enterprise in which the profits and losses are shared proportionally. The legal definition of a partnership is generally stated as "an association of two or more persons to carry on as co-owners a business for profit"

Apparent Authority (표현대리:대리권이 없는 자가 대리인이라고 칭하고 행하는 행위를 말하는 것이다. 대리인에게 대리권이 없음에도 불구하고 마치 그것(대리권)이 있는 것과 같은 외관이 있고, 그러한 외관의 발생에 본인이 어느 정도 책임이 있는 경우에, 대리인의 대리권 없는 대리행위의 효과를 본인에게 귀속시키는 것을 표현대리라고 한다.)

Apparent authority arises when someone reasonably believes a person has the authority to act on behalf of another person or entity to engage in business transactions or enter into contracts. Typically, this belief stems from the person's actions leading to the belief that they have been given authority to act. The issue of apparent authority is most often relevant in corporate and constitutional law. To explore this concept, consider the following apparent authority definition. ex) Apparent authority may be given by a company by providing an individual, who has no authority to make decisions or to contract, such items as business cards or stationery, business forms with the company's logo, or a company truck with a logo. These items would lead any reasonable person to believe the individual had authority to act on behalf of the company. If these items have been provided by the company, any price quote given, or contract entered into between, the individual and a customer may be legally binding.

Circuit Courts 순회 항소 법원

Appelate Courts are reviewing courts (Court of Appeals) (Circuit Court) (Reviewing Court) A. 13 Circuit Courts B. 11th Circuit Georgia C. Groups of states in a circuit D. 13 circuit E. 3 Justices at Circuit Court Of Appeals F. May want a 2nd review G. "En Banc Review" Full Court of Justices H. Iniital Review" 3 Justices I. # of District court decided on population J. States will have more then one district court K. 11th circuit Georgia Alabama and Florida

Arbitration (중재)

Arbitration is the judging of a dispute between people or groups by someone who is not involved. Arbitration is a well-established and widely used means to end disputes. It is one of several kinds of Alternative Dispute Resolution, which provide parties to a controversy with a choice other than litigation. Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; agree in advance to comply with the arbitrator's award; and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator's decision is usually final, and courts rarely reexamine it. The parties give the power to decide the dispute to the arbitrator. Evidence and argument is considered and a written arbitration award issued. The process can be as formal or informal as the parties' desire.

In rem Jurisdiction (From Latin, "against a thing.") (소송 절차 따위가) 물건에 관하여, 대물적(對物的)인, 물건에 대한(against a thing).

Concerning the status of a particular piece of property. For instance, in-rem jurisdiction refers to the power of a court over an item of real or personal property. The "thing" over which the court has power may be a piece of land or even a marriage. Thus, a court with only in-rem jurisdiction may terminate a marriage or declare who owns a piece of land. In-rem jurisdiction is based on the location of the property and enforcement follows property rather than person. In a REM action, the defendants are numerous, as opposed to a Quasi in REM action where the dispute revolves around the plaintiff's claim and the defendant's property.

Replacement and cross-over workers (대체노동자, 교차노동자) (Strike:a work stoppage by employees for the purpose of coercing their employer to give in to their demands)

Crossover-person who does not honor strike by either choosing not to or returning to work after joining strikers for a time. employees who choose not to strike or return aFer joining the strikes. Crossover workers: employees who choose not to strike or return to work after joining the strikers. Replacement worker "scab"- worker who is hired on a temporary or on a permanent basis to take the place of a striking worker. hired on temporary or permanent basis to take the place of the striking employees. a tactic successfully used by companies in recent years to weaken a union is the hiring of nonunion workers to replace striking workers. In some cases there are enough replacement workers and crossovers (workers who cross the picket line) that the union had lost substantial strength by the time a new agreement was signed. Replacement workers: hired on temporary or permanent basis to take the place of the striking employees

Defamation (명예훼손)

Defamation Of Character is an Untrue statement of material fact that has been published meant to cause harm Defamation Against a Public figure is Actual Malice

Which federal law prohibits child labor, and spells out minimum wage and overtime? (Fair Labor Standards Act (1938)

Fair Labor Standards Act (1938) - child labor: 1) under14, cannot work except approved by depart of labor, 2) 14-15, can work w/ limited hours non-dangerous job. 3) 16-17, unlimited hours, but cannot be dangerous. 4) work any job over 18 years old. - minimum wage: fed's minimun wage is $7.25. (when less then minimum wage, 1) internship, 2) server 식당웨이터) - overtime pay: more then 40 hours per week. Under FLSA, employer cannot require non-exempt employee to work more than 40 hours per week unless employee paid overtime pay. FLSA sets overtime pay as one-and-a-half times

First to File Rule

First to file (FTF) and first to invent (FTI) are legal concepts that define who has the right to the grant of a patent for an invention. The first-to-file system is used in all countries, including the United States, which switched to a first-inventor-to-file (FITF) system on March 16, 2013 after the enactment of the America Invents Act. There is an important difference between the strict nature of the FTF under the European Patent Office (EPO) and the FITF system of the United States Patent and Trademark Office (USPTO). The USPTO FITF system affords early disclosers some "grace" time before they need to file a patent,[4] whereas the EPO does not recognise any grace period, so early disclosure under the FITF provisions is an absolute bar to later EPO patent.

Unilateral Contract / Bilateral Contract

Google Definition: When most people think of contracts, bilateral agreements come to mind. In its most basic form, a bilateral contract is an agreement between at least two people or groups. Most business and personal contracts fall into this category. Examples of bilateral contracts are present in everyday life. You're entering this type of agreement every time you make a purchase at your favorite store, order a meal at a restaurant, receive treatment from your doctor or even check out a book at your library. In each circumstance, you've promised a certain action to another person or party in response to that person or party's action. The easiest way to understand unilateral business contract is by analyzing the word 'unilateral.' In its simplest terms, unilateral contracts involve an action undertaken by one person or group alone. In contract law, unilateral contracts allow only one person to make a promise or agreement. You might see examples of unilateral contracts every day, too; one of the most common instances is a reward contract. Pretend you've lost your dog. You place an advertisement in the newspaper or online offering a $100 reward to the person who returns your missing pooch. By offering the reward, you're offering a unilateral contract. You promise to pay should anyone fulfill the obligation of returning your dog. You're the only person who has taken any action in this contract, as no one is specifically responsible or obligated to finding your dog passed on this interaction. Another common example of a unilateral contract is with insurance contracts. The insurance company promises it will pay the insured person a specific amount of money in case a certain event happens. If the event doesn't happen, the company won't have to pay.

Vesting (ERISA: Employee Retirement Income Security Act) ((정년 전(前) 퇴직자의) 연금 수령권 (부여))

If you decide, you can provide that record of money. They cannot control or take out of pension fund. normal over about 5 years. "Vesting" in a retirement plan means ownership. This means that each employee will vest, or own, a certain percentage of their account in the plan each year. An employee who is 100% vested in his or her account balance owns 100% of it and the employer cannot forfeit, or take it back, for any reason. Amounts that are not vested may be forfeited by employees when they are paid their account balance (for example, when the employee terminates employment) or when they don't work more than 500 hours in a year for five years. under the Employee Retirement Income Security Act, the requirement that pension benefits become the property of workers after a specific number of years of service to an employer - tax benefits to employers for offering 401k/ retirement benefits to employees; tax write-offs

Implied Authority (implied agency) (Agency relationship) ((매약결정·상품적송 수도 등의 권한의) 묵인위임.) (<-> 반대말 Actual authority, also referred to as "express authority," pertains to specific powers to given to an agent in an oral or written contract. This differs from implied authority in that implied authority is has been assumed because of the circumstance.)

Implied authority, also known as "usual authority," is the authority of an agent acting on behalf of another person or entity. The person acting with implied authority does what is reasonably necessary in order to effectively perform his duties. The acts undertaken surrounding the use of implied authority depend on the circumstances and the case. To explore this concept, consider the following implied authority definition. Authority that is not specifically expressed or defined in writing, but which an employee or agent assumes to possess in order to conduct business on behalf of an agency.

Rule (16a) Statutory Insiders (법적인 내부자) (Securities and Exchange Commission (SEC))

Insiders: Officers, Directors, 10% of share holders. Section 16 is intended to prevent unfair use of inside information and discourage speculative trading by insiders by requiring them to report holdings and transactions in a reporting company's securities (under Section 16(a)). Section 16(a) requires directors and executive officers of a reporting company to report their beneficial ownership of and transactions in the company's securities to the SEC and the public.

"Effects of Interstate Commerce Test" (Katzenbach vs. McClung)

Katzenbach v. McClung, 379 U.S. 294 (1964), is a United States Supreme Court case in which the Court unanimously held that Congress acted within its power under the Commerce Clause of the United States Constitution in forbidding racial discrimination in restaurants as this was a burden to interstate commerce.

Res ipsa loquitur (과실 추정치: the thing or matter speaks for itself)

Latin for "the thing speaks for itself." In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant's control, and that there are no other plausible explanations.

Fictitious Business name (=Trade name)

Naming your business is an important branding exercise, but if you choose to name your business as anything other than your own personal name then you'll need to register it with the appropriate authorities. This process is known as registering your "Doing Business As" (DBA) name. A fictitious name (or assumed name, trade name or DBA name) is a business name that is different from your personal name, the names of your partners or the officially registered name of your LLC or corporation. It's important to note that when you form a business, the legal name of the business defaults to the name of the person or entity that owns the business, unless you choose to rename it and register it as a DBA name. In "Sole Proprietors or Partnerships" - If you wish to start a business under anything other than your real name, you'll need to register a DBA so that you can do business as another name.

Negligence per se (부주의, 태만, 과실 그자체)

Negligence due to the violation of a law meant to protect the public, such as a speed limit or building code. Unlike ordinary negligence, a plaintiff alleging negligence per se need not prove that a reasonable person should have acted differently -- the conduct is automatically considered negligent, and the focus of the suit will be over whether it proximately caused damage to the plaintiff. There is a law in place that imposes a duty on the defendant. If the defendant had not violated the law, then the plaintiff would not have gotten injured. Texting and driving. If you weren't texting and driving you would have been paying attention and would not have crashed.

Liability of Sole proprietor

Owners are subject to unlimited personal liability for the debts, losses and liabilities of the business. The biggest downside to operating a business as a sole proprietor is the liability you are subject to. If your business incurs debts that it cannot pay from the profits, you are personally liable and responsible for payment. Creditors may sue you personally to satisfy the debt. The opposite is also true. If you have personal debts that are unpaid, a creditor may go after your business profits or assets to satisfy the debt. Along with liability for debts, as a sole proprietor you also have personal liability for any torts, or injuries, that occur as a result of any acts or omissions of your business. You may, however, be able to purchase liability insurance for your business that can help eliminate tortious liability.

Appellant (상고인, 항소인, 항고인)

Petitioner/ Appellant Party who Is appealing Google Definition: a person who applies to a higher court for a reversal of the decision of a lower court.

What is the significance of "preferred" in reference to Preferred Stock(=preference shares)? = dividend and liquidation

Preferred stock is a class of equity ownership that has a more senior claim on the earnings and assets of a business than common stock. In the event of "liquidation", the holders of preferred stock must be paid off before common stock holders, but after secured debt holders. Preferred stock also pays a "dividend"; this payment is usually cumulative, so any delayed prior payments must also be paid before distributions can be made to the holders of common stock. Preferred stock holders can have a broad range of voting rights, ranging from none to having control over the eventual disposition of the entity. Preferred stock may be sold when a company is unable to sell common shares at a reasonable price.

Revocation, Rejection and Counteroffer

Rejection: A rejection terminates an offer. A rejection is an offeree's communication that an offer is unacceptable. Counteroffer: The offeree's power of acceptance can also be terminated by a counteroffer. A counteroffer is an offer made by the offeree to the offeror that concerns the same subject matter as the original offer but differs in its terms. Revocation: Revocation of the offer is the withdrawal of an offer by the offeror so that it can no longer be accepted. The revocation takes effect as soon as it is known to the offeree. An offeror may revoke an offer before it has been accepted, but the revocation must be communicated to the offeree.

Appellee (피항소인, 피상고인)

Responder/ Appellee Party who is responding Google Definition: the respondent in a case appealed to a higher court.

Rule (16b) Short Swing Profits (단기매매익) (Securities and Exchange Commission (SEC))

Section 16 also requires insiders to pay over to the reporting company any "profits" realized from any purchase and sale (or any sale and purchase) of the reporting company securities within a six-month period (under Section 16(b)). any given six-month period will be matched. Any "profit," whether inadvertent or intentional, realized by matching a purchase and sale within a six-month period is recoverable by the company.

Who is protected under the Age Discrimination Act? (Age Discrimination in Employment Act of 1967 (ADEA))

Some employers discriminate against employees or prospective employees based on their age. The ADEA prohibits (1) employment discrimination on the basis of age against persons 40 years of age or older, and (2) mandatory retirement for non-managerial workers. The ADEA applies to employers engaged in a business activity that affects interstate commerce and has 20 or more employees. The ADEA is administered by the EEOC. A claimant can file a claim through the EEOC or bring a private lawsuit under the ADEA. The remedies available to a claimant under the ADEA are recovery of back pay, attorneys' fees, and equitable relief, such as hiring, reinstatement, or promotion.

Consideration

Something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances. Consideration is an essential element for the formation of a contract. It may consist of a promise to perform a desired act or a promise to refrain from doing an act that one is legally entitled to do.

Mirror Image Rule

Terms of offer and terms of acceptance must be the same. (mirror Image rule.) In contract law, a doctrine requiring any acceptance to be an unconditional assent to the terms of the offer. Thus, at least historically, any acceptance had to embrace the pricing and other information included in an offer, or there would be no binding contract.

Equal Protection Clause (Three levels of Scrutiny) (평등보호조항)

The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibits states from denying any person within its territory the equal protection of the laws. This means that a state must treat an individual in the same manner as others in similar conditions and circumstances. The Federal Government must do the same, but this is required by the Fifth Amendment Due Process. The point of the equal protection clause is to force a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Thus, the equal protection clause is crucial to the protection of civil rights. 1) What classification does a government action create? 2) What level of scrutiny should be applied to this classification? 3) Does this particular government action meet that level of scrutiny?

Commerce Clause (통상조항:헌법 제1조 8절 3항을 말함; 연방의회가 「외국과의 통상, 주(州) 사이의 통상, 인디언과의 통상을 규제하는」 입법을 할 수 있음을 규정한 것; 주(州) 사이의 통상규제만이 아니고 주 사이의 사람과 물자교류에 관계되는 제반문제(노동·범죄·인종차별 등)도 규제의 대상이 된다)

The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: The Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.

Stare Decisis 선례 구속성의 원리 ((하나의 판결이 정립된 후에 동일 또는 유사한 사건에서 선례로써 판단을 구속하는 원리))

The Doctrine Of Stare Decisis is the practice of deciding new cases with reference to former decisions. Therefore, when a case is decided by the court, the general principles that are developed and applied by the court to resolve individual disputes will be applied to future cases with the same issues.

Norris LaGuardia Act (under Federal Labor Statutes in Labor and Woker protection laws) (노리스 라 가디아법(法): 1932년에 제정된 미국의 법, 노동 조합에의 불가입 또는 탈퇴를 조건으로 하는 고용 계약(황견(黃犬) 계약 yellow-dog contract)을 금지하는 조항을 포함하며 스트라이크·피켓·보이콧 따위의 노동 쟁의에 대한 법원의 금지 명령(injunction)의 발급을 제한한 것.)

The Norris-LaGuardia Act of 1932 protected unionization by limiting the ability of courts to interfere in union organizing activities. It made yellow dog contracts unenforceable. It ended the criminal conspiracy doctrine applied to labor unions. It forbade federal courts from issuing injunctions that interfere with strikes and peaceful picketing. The Norris-LaGuardia Act (29 U.S.C.A. § 101 et seq.) is one of the initial federal labor laws in favor of organized labor. It was enacted in 1932 to provide that contracts that limit an employee's right to join a Labor Union are unlawful. Such contracts are commonly known as yellow dog contracts. Initially the law was known as the anti-injunction act since its numerous restrictions had the effect of stopping any federal court from issuing an Injunction to end a labor dispute. In one part of the act, for example, there is a provision that an injunction prohibiting a strike cannot be issued unless the local police are either unwilling or unable to prevent damage or violence. ended court interventions to stop strikes and other union activities. The Act declared that every worker should "have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate terms and conditions of his employment"

Railway Labor Act (under Federal Labor Statutes in Labor and Woker protection laws)

The RLA was the first federal law guaranteeing the right of workers to organize and join unions and elect representatives without employer coercion or interference. The RLA makes it the duty of all carriers and their employees to exert every reasonable effort to voluntarily settle disputes. The RLA applies to freight and commuter railroads, airlines, companies directly or indirectly controlled by carriers who perform services related to transportation of freight or passengers and the employees of these railroads, airlines and companies. The RLA contains five basic purposes: 1) To avoid any interruption to commerce. 2) To ensure an unhindered right of employees to join a labor union (added in 1934). 3) To provide complete independence of organization by both parties to carry out the purposes of the RLA. 4) To assist in the prompt and orderly settlement of disputes covering rates of pay, work rules, or working conditions. 5) To assist in the prompt and orderly settlement of disputes growing out of grievances or out of the interpretation or application of existing contracts covering the rates of pay, work rules or working conditions.

Supremacy Clause 연방정부의 우월성

The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. a. Preemption Doctrine (federal laws take precedence over state or local law). b. State and local laws that are in conflict with valid federal law are unconstitutional.

Requirements for an offer

The offer needs to be communicated to the other party so that its acceptance may constitiute a contract. An offer must be communicated to the person to whom the offer is made (the offeree) if the offer is to be effective. If an offer is sent in the post it will have no effect until it reaches the offeree. 1) objective intent. 2) certain terms, definition. 3) communication to the offeree.

Mediation (조정)

The parties to the dispute retain the right to decide whether or not to agree to a settlement. The mediator has no power to impose a resolution, other than the power of persuasion. All settlements reached at JDR through mediation are memorialized in a written settlement agreement. It generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute.

Misappropriation of the right to publicity

The right of publicity is the right to control the commercial exploitation of a person's name, image or persona. The use of a person's name or likeness for commercial purposes without consent is misappropriation. You use someone's name or picture for commercial purposes. The use of the name, likeness or persona for news, information, or public interest purposes is not a violation of the right of publicity. For this reason, Taylor Swift cannot prevent the use of a photo of her in the National Enquirer. The right of publicity is not only for celebrities. Any person whose name or image is used to sell products may claim a misappropriation of this right. For example, if a child's photograph is taken and used to sell toys, that child could claim a misappropriation of the right of publicity. It is for this reason that all models or persons used in advertisements or endorsements sign consent or release agreements. For a payment the model grants a right to use the image. Example Adidas Stealing Air Jordan from Nike and Making Fly Jordan.

What are the defenses to a change of discrimination under Title VII? (EEOC: Equal Employment Opportunity Commission)

There are three defenses available to defenders under Title VII: bona fide occupational qualification(BFOQ), merit, and seniority. The defendant raises these defenses after the claimant has established a prima facie case. 1) bona fide occupational qualification (BFOQ): This defense allows an employer to discriminate in hiring against a protected class when a characteristic is necessary for the performance of a job—that is, when a particular trait is a bona fide occupational qualification (BFOQ). This defense does not apply to protected classes based on race, color, and national origin. job related or business related. 2) Merit: Often employers use tests. When an employer uses a professionally developed ability test, which is not created, intended, or used to discriminate, this is permissive even when the test has adverse impact on a class, so long as it is manifestly related to the job performance. Since 1978, the Uniform Guidelines on Employee Selection Procedures (UGESP) empowers all government agencies to enforce civil rights laws and provide guidance to employers and other interested parties when an ability test is valid and job related. 3) Seniority: A bona fide seniority system is a defense when employees are given preferential treatment based on their length of service. For this defense to apply, the seniority system must (1) apply equally to all employees, (2) follow industry standards, (3) not be intended to discriminate, and (4) be free from any illegal discriminatory purpose.

Novation (discharge of performance)

Third party, Legal Substitution of Parties is a novation. One party has his duty discharged and another party takes its place.

Preemption Doctrine 연방정부 우선권

Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law. Basically, The federal government can invalidate a state law which is in conflict with federal law. When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution

Quasi in rem jurisdiction

When hearing quasi in rem actions, a court may only affect a named defendant's interest in a specific named piece of property. These actions have similarlities with both in rem and in personam actions. As is the case with in rem actions, a court may hear a quasi in rem action if the named property is within the court's jurisdiction, even if the court does not have the power to exercise in personam jurisdiction over the defendant. However, a court acting quasi in rem may only affect the interests of a single, named defendant, as is the case in an in personam action. Quasi in REM involves a situation where the defendant's property is seized to satisfy the plaintiff's claim. The court does not determine the rights or ownership of the seized property.

Public Domain

Works that are in the public domain belong to everyone and can be freely used without compensating the authors. There are many reasons why a work may be in the public domain. For example, works consisting entirely of information that is commonly available and that contain no original authorship are in the public domain. Works that previously were entitled to copyright protection enter the public domain when the Term of the copyright has expired. Under the 1909 Copyright Act, if a work was published without a Copyright Notice, protection was lost and the work entered the public domain when it was first Published.

Freedom of Religion

a. Establishment Clause i. Separation of Church and State. ii. Because the government cannot establish a religion or favor one over the other. 1. 2 Cases. a. 10 Commandments b. in a courtroom had to be removed because there is no state religion Also Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

Distributorship and Processing Plant Franchise (define)

a. Franchise (definition) The parties are the franchisor and the franchisee. The franchisee will file a application for a franchise with the franchisor. If the application is approved by the franchisor then the parties will sit down and negotiate a agreement i. Types of Franchises 1. Distributorship a. (One in which the franchisor makes the product and the franchisee sells it) Example car dealerships 2. Processing plant franchise a. The franchisee makes the product based on information from the franchisor. (Coca Cola Bottling Plant) Bottling Plant makes the coke but use the formula from the coca cola company) Often have Trae Secrets 3. Chain Style franchise a. Where you get to sell the product from a retail outlet. b. McDonalds 4. Area Franchise a. Some franchisors license a franchisee through a area franchise. ii. Trademarks and Trade Secrets

Franchise (define)

a. Franchise (definition) The parties are the franchisor and the franchisee. The franchisee will file a application for a franchise with the franchisor. If the application is approved by the franchisor then the parties will sit down and negotiate a agreement i. Types of Franchises 1. Distributorship a. (One in which the franchisor makes the product and the franchisee sells it) Example car dealerships 2. Processing plant franchise a. The franchisee makes the product based on information from the franchisor. (Coca Cola Bottling Plant) Bottling Plant makes the coke but use the formula from the coca cola company) Often have Trae Secrets 3. Chain Style franchise a. Where you get to sell the product from a retail outlet. b. McDonalds 4. Area Franchise a. Some franchisors license a franchisee through a area franchise. ii. Trademarks and Trade Secrets

Implied Warranty of Fitness for a Particular Purpose

a. Implied Warranty of Fitness for a particular purpose i. Seller may be a merchant or non-merchant ii. The goods/product must be fit for the particular purpose Google Definition: This type of warranty is created if the seller has reason to know that: (1) the buyer intends to use the goods being sold for a particular purpose, and (2) the buyer is relying on the seller's skill or judgment in selecting which goods to buy for that purpose. When these two conditions are met, the seller will be bound by this warranty.

Substantive Due Process (실체적 적정 과정: 입법이 실체로 적정한 것임을 요구하는 헌법 해석의 사고 방식)

a. No one should be deprived of life, liberty, or property without due process b. Substantive due process i. It says that this individual is challenging the way that the law is written is too vague and too ambiguous. (it need to be rewritten)

Implied Warranty of Merchantability

a. implied warranties are created by law. i. Parties: 1. Manufacturer Seller, Retailer Seller, ii. Implied Warranties are warranties you get by law b. Implied warranty of merchantability i. The Goods must be fit for the ordinary purpose for which they are used. ii. The seller must be a merchant iii. The goods or product you purchased must be fit for the purpose you use iv. In order to get the implied warranty, the seller must be a merchant. No yard sale, or friend. Best buy Home Depot count Virtually every consumer product you buy comes with an implied warranty of merchantability. This is an assurance that a new item will work if you use it for a reasonably expected purpose. For used items, the warranty of merchantability is a promise that the product will work as expected, given its age and condition.

Requirements to create an enforceable contract

agreement consideration capacity (Capacity to Contract (Mental Competence) You must be mentally competent at the time of transaction.) lawful object

Procedural Due Process (절차적 적법절차)

c. Procedural due process challenge i.Says don't take my life liberty or property without giving me due process ii. Notice and a hearing that this is what a procedural due . iii. Civil Case 1. The due process Sheriff will give a summons iv. Criminal case 1. The Due process starts when you appear in Court d. The government can take your private property as long as it is being used for public use or for public domain.

Guaranty Arrangement

collateral promises. secondary promise.

Public Use Doctrine (one-year "on sale" doctrine)

doctrine that says a patent may not be granted if the invention was used by the public for more that one year prior to the filing of the patent application. allow to public to use.

Accord & Satisfaction (discharge of performance)

i. Dispute ii. It's not uncommon that when parties enter into a contract there could arise a dispute. iii. Work out an agreement. iv. They made a new contract and this new contract is called an accord. The performance of the accord is called a satisfaction. v. When they satisfied or performed the new contract the old contract is discharged. If you don't satisfy the new contract then the old contract is not discharged.

Contracts for the sale of goods

more than $500, must be written contract.

Bill of Rights

protects individual rights (Bill of Rights consists of the first ten amendments to the constitution). Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

What are the five protected classes under Title VII of the Civil Rights Act of 1964? (EEOC: Equal Employment Opportunity Commission)

race, sex, color, religion, and national origin.

Action for an accounting

refers to an action for equitable remedy. This action is against a person in a fiduciary relationship to recover profits taken in a breach of the relationship. ; A fiduciary Relationship is where one person places complete confidence in another in regard to a particular transaction or one's general affairs or business. The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling.

Covenant (promises of performances)

satisfy my promise, satisfied your promise. an unconditional duty to perform.

Right-to-Work Law (노동권법 ((조합에 가입하지 않아도 직장을 유지할 수 있는)))

state laws that prohibit unions from forcing employees who do not want to pay union dues or agency fees to pay such dues or fees even if the employees are represented by the union under a collective bargaining agreement. a state law forbidding requirements that workers must join a union to hold their jobs; they were specifically permitted by the Taft-Hartley Act of 1947. Right-to-work laws are state laws that prohibit both the closed and union shop. A right to work law secures the right of employees to decide for themselves whether or not to join or financially support a union. However, employees who work in the railway or airline industries are not protected by a right to work law, and employees who work on a federal enclave may not be. Legislation that allows a person to work at any place of employment without being forced to join a union as a condition of employment.

Battery (공갈, 폭행, 구타 the crime of attacking someone and causing them physical harm.)

whereas battery is a physical act that results in that harmful or offensive contact. Assault is a lesser included offense of battery, meaning that assault merges into battery and that a defendant may be punished for one but not both crimes.

Interrogatories (질문서)

written questions asked by one party to a suit, to which the other party has to give written answers under oath. a written question that is formally put to one party in a case by another party and that must be answered. 1. As long as the questions are related to the lawsuit they can be asked. 2. There may be times during a lawsuit