MGMT 209 - ENTIRE SET

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Small Businesses Regulatory Enforcement Fairness Act (SBREFA) of 1996

Permits Congress to review new federal regulations for at least 60 days prior to their effective date --

Tortfeasor

Person committing the tort meant to do the act that resulted in the harm -Does NOT mean that the tortfeasor meant to harm the innocent party

Complaints to FDA

--Go to Complaint Coordinator --In TX: can Skype complaint --FDA investigates --Inspector creates report subject to public disclosure

What are the good, the bad, and the ugly ways to terminate a contract by performance?

--Good: Complete Performance --Bad: Substantial Performance --Ugly: Material Breach

10(b) Rule

--Gov't Prosecutor has to PROVE that violator had insider information --More broad Rule --Can go after ANYONE over ANY time period who used insider info. --$10,000 fine and up to 10 years in prison --Can be stacked --i.e. Martha Stewart charged in civil law with insider trading

Why does the SEC focus on ensuring the quality and accuracy of the info. presented to investors, rather than on whether a given investment is a wise one or not?

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Why is Delaware important in Corporations?

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Why is the Dirks v. SEC case important in a discussion of corporate governance?

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Constitutional Limits on Investigatory Power

1) 4th Amendment (but relaxed when applies b/c it's Civil Law) --Need some kind of reasonable cause --Can NOT harass businesses --Needs to be a violation of rule/regulation OR valid public interest

Concerns of 1970s and 1980s

1) AIDS 2) Approval of generic brands 3) Recall of medical devices 4) Speedier approval of drugs

What are the defenses to a strict liability case?

1) Abuse or misuse of a product 2) Assumption of the risk by user

Duty of Due Care and Diligence

1) Act in good faith 2) Exercise a level of care that an ordinary prudent would exercise in similar circumstances

1) Actual news event (HOW you tell the news is covered) 2) Historical info 3) Scientific info 4) Ideas [Patent Law] 5) Processes [Patent Law] 6) Inventions [Patent Law] 7) Compilations of factual info 8) Trademarks

What is NOT covered by Copyright Law?

What are the major types of discovery?

1) Deposition 2) Interrogatories 3) Request for Admissions 4) Production of Documents [Request for Production]

In a competitive market, Board must strive to:

1) Develop new products 2) Reduce Costs 3) Eliminate waste

3 Groups that do NOT have Contractual Capacity

1) Minors (under 18) ---Contract can be voided by minor up until, and a little after, 18th bday, valid contract to adult 2) Intoxicated People 3) Insane People

What are the elements of fraud? What is the effect of fraud on contracts?

1) Misrepresentation 2) Intent to deceive 3) Justifiable reliance on misrepresentation 4) Innocent Party Injured

Fraudulent Misrepresentation (Fraud)

1) Misrepresentation of material facts or conditions 2) Knowledge that they are false OR with reckless disregard for truth 3) Intent to induce another to rely on the misrepresentation 4) Justifiable reliance by the deceived party 5) Damages suffered as a result of the reliance 6) Causal connection between the misrepresentation an the injury suffered

What are the legal remedies to breach of contract?

1) Monetary Damages (compensate for agreed upon exchange) 2) Compensatory Damages (compensate for lost bargain) 3) Consequential (special needs or unique position of buyer) 4) Liquidated (amount put into contract to be paid in case of default)

3 steps making Tying Arrangement ILLEGAL

1) Must be a demand for the tying product 2) Tying product and tied product must be totally separate 3) Must adversely affect the Tied product's market

10) Which Labor Law specifically legalized unions and gave them several concerted activities like going on strike? A) Norris LaGuardia B) Wagner C) National Labor Relations Act D) Wagner Act E) Landrum-Griffin

17) Which Labor Law created the NLRB? A) Norris LaGuardia B) Wagner Act C) Taft-Hartley Act D) Landrum-Griffin Act E) The NLRB was created by case law

18) The Magna Charta of American Labor is: A) Anti-Injunction Act B) National Labor Relations Act C) Labor-Management Relations Act D) Labor-Management Reporting and Disclosure Act E) C and D

19) American unions tend to follow which theory? A) Social unionism B) Business unionism C) Democratic unionism D) Communist unionism E) Fascist unionsim

20) The Election of 1932 ushered in a new era called the: A) New Frontier B) New Deal C) Great Society D) Big Deal E) Social Society

The free exercise clause means that: A) You have the Constitutional right to exercise your religion as you see fit B) You have the Constitutional right to believe anything you want to believe in religion C) A city cannot use a manger scene at Christmas time D) All gyms must be open 24 hours a day except on Sundays E) B and C

4. How many different classes of partners must a limited partnership have to be legal? A) one B) two C) three D) four E) five

B) 2

20) What is the time period on 'Short-Swing' Profits?

B) 6 months

Which type of court makes precedent? A) Trial Courts B) Appellate Courts C) Trial Courts and some appellate courts D) Only the U.S. Supreme Court E) The U.S. Supreme Court and the highest state courts

B) Appellate Court

11) If a factory is built in 1990 and emits air pollution, what type of pollution control devices would be required to be installed by the factory? A) RACT B) BACT C) BPCT D) MACT E) None of the above

B) BACT

3) If a factory was built after the Clean Water Act went into effect, what type of pollution control device must be installed? A) RACT B) BACT C) MACT D) BPCT E) None of the above

B) BACT

8) What did labor call Taft-Hartley? A) Reinstatement of Pre-Civil War Status B) Forced Labor Act C) Slave Labor Act D) Labor-Management Overseer Act E) Field Hand Reinstatement Act

Jim Crow laws: A) were outlawed by Plessy B) Are a collection of strict Southern Laws keeping people of color as 2nd class citizens C) Included the White Primary in TX D) Were all declared to be unconstitutional by Smith v. TX E) Were efforts by the North to help Af. Am.

C) -The states' efforts to keep minorities, primarily African-Americans, as second-class citizens

How many members are on the Texas Supreme Court? A) Five B) Seven C) Nine D) Eleven E) It varies from year to year due to the Texas Legislature

C) 9 members

What were the people who were in opposition to the Constitution as originally written and who is/are example(s) of that type of individual A) Federalists, James Madison B) Federalists, John Jay C) Anti-Federalists, Thomas Jefferson D) Anti-Federalists, Alexander Hamilton E) C and D

C) Anti-Federalists -Thomas Jefferson

6) Wetlands are enforced by A) EPA B) Coast Guard C) Army Corps of Engineers D) NRC E) Commerce Department

C) Army Corps of Engineers

8) Who/what is responsible for the operation of the corporation? Who would be the agents to the owners of the corporation?

C) Board of Directors

8. What is the birth certificate of the LLC? A) Articles of Organization B) Articles of Incorporation C) Certificate of Organization D) Certificate of Incorporation E) Corporate Charter

C) Certificate of Organization

17. If your primary objective is to be able to raise capital from the public, which form of business entity is the correct choice? A) sole-proprietorship B) partnership C) corporation D) limited partnership E) limited liability company

C) Corporation

Phipps v. Clark Oil & Refining Corp.

Cannot fire an employee for following important "public policy" standards or laws

Secondary Boycott

Cannot go after someone else in order to hurt a different business --i.e. Picketing against Firestone b/c it supplies tires to the business you work for --Now Illegal EXCEPT: >Ally Doctrine

14) The Taft-Hartley Act of 1947 is also called the: A) Anti-Injunction Act B) National Labor Relations Act C) Wagner D) Labor-Management Relations Act E) Labor-Management Reporting and Disclosure Act

16) During the Depression at the time that FDR was implementing the New Deal what was the rate of unemployment in the US? A) 10% B) 20% C) 25% D) 30% E) 50%

16. What was the first state to have LLCs in the United States? A) Neveda B) Arkansas C) Kansas D) Wyoming E) Montana

D) Wyoming

Negligence requires A) A duty owed to the injured party B) Harm to the injured party C) Breach of the duty D) Causation E) All of above

Sam points a water pistol at Jane who thinks Sam is going to kill her. Jane is terrified and runs away. Jane sues Sam. What will probably happen? A) The law would always rule for Sam since it was just a water pistol B) The law would always rule for Jane since she was terrified C) If the judge or jury felt that a reasonable person would be afraid, they would rule for Jane D) If the judge or jury felt that it was unreasonable to be afraid of that particular water pistol, they would rule for Sam E) C and D

Strict Liability in Torts is A) Liability without fault B) Careless or reckless conduct C) Normally limited to abnormally dangerous activities D) All of above E) A and C

Sunday laws: A) Are when a business cannot be open on Sunday B) Are also called Blue Laws C) Are illegal D) All of the above E) A and B

The Court System can create law by: A) Judicial Review B) Judicial Interpretation C) Common Law D) Opinions of the trial court Judge E) A, B, and C only

The purpose of Tort Law is A) Compensation B) Justice C) Deterrence D) Social insurance E) All of above

Which of the following are protected by Copyright Law? A) An invention B) Architectural Designs C) Writing a story about a historical event D) The actual news itself E) B and C

Which of the following contracts MUST be in writing? A) A contract that cannot be performed in a year B) A contract that was not performed in a year C) An earnest money contract to sell your house D) All of above E) A and C but NOT B

Which of the following is an element to an offer: A) Genuine and real intent on the part of the offeror B) Sincerity on the part of the offeree C) Definite terms and conditions D) Communication of the offer to the offeree E) A, C, and D

Which of the following was created by the Constitution? A) Executive Branch B) Legislative Branch C) Judicial Branch D) Bureaucracy E) A, B, and C

The U.S. Constitution can be changed by: A) Formal Amendment B) Executive Order C) State Statutory Law D) Judicial Interpretation E) A and D

E) Formal Amendment & Judicial Interpretation

What caused the trusts to become powerful in the late 1880s? A) Growth of corporations B) Pro-business attitudes of the courts C) Republican domination D) A large amount of international business activity E) A, B, and C

E) Growth of corporations, Pro-business attitudes of the courts & Republican domination

If 2 companies want to merge that sell the same products in a different art of the country, what type of merger would this be? A) Vertical B) Horizontal C) Product extension merger D) Geographic extension merger E) B and D

E) Horizontal & Geographic Extension Merger

Exxono Valdez disaster

First cleanup barge did not reach site for 14 hours --> 1,100 miles of shoreline covered with oil --Resulted in the passage of OPA

Courts of Appeal

First level of Appellate Courts -14 in Texas

Texas v. Johnson

Flag burning controversy -Court ruled that the Texas law prohibiting the burning of the American flag was unconstitutional -- too restrictive on the freedom of speech -Resulted in a constitutional amendment making it illegal to burn an American flag

Enforcement [Investigatory] Powers

For agency to carry out its duties, it must obtain information, usually through enforcement powers -"Police force" -Sets them aside from other Agencies

Bankruptcy Chapter 13

For wage owners with a fixed income --Organize a plan to work out of debt --5 year pay out --Restrictions: 1) Total amount of debt 2) Required income of the debtor

Pure Food and Drug Act (1906)

Forbids interstate and foreign commerce (Commerce Clause) in adulterated and misbranded food and drugs --Aka The Wiley Act

Self-Defense

Force allowed to REASONABLY defend self or others -No deadly force for Property (Common Law) -Duty to flee for Civil Law (Not Criminal Law) -Texas has far-reaching gun laws

Form of protection for original works of authorship fixed in a tangible medium or that can be reduced to a tangible medium of expression and includes both published and unpublished works --Notice of Copyright NO longer required

Corporation Managers

Have power and authority to engage in all legal activities necessary to conduct the corporation's business --Often members of Board of Directors --Agents to the Directors

Babcox-Wilcox Doctrine

Have to let the Unions come in and talk to their workers --

Interlocking Directorates

Having the same people sit on competing corporations' Board of Directors --Amounts set by FTC and normally adjusted upwards

Donovan v. Dewey

Hazardous industries often have statute expressly providing for warrantless searches

Harvey W. Wiley

Head of Agriculture, Bureau of Chemistry

Adjudicatory Powers

Hearing before an Administrative Law Judge (ALJ) who is employee of the Agency w/OUT a jury (Both prosecutor and judge) --Potential conflict of interest is minimized by certain required procedures --Replaces district and federal court system b/c it has its own appellate courts as well

Nebraska Press Associate v. Stewart

Heavy presumption against censorship -against the constitutionality of prior restraint

Appeal

Help guarantee that the parties to a lawsuit receive a fair trial -Reasons: 1) Improper instructions 2) Error by Court 3) Misconduct 4) Fraud 5) Clerical error

Compelling State Interest

Highest protection of the 14th Amendment -Classification involves fundamental rights or suspect classification -i.e. race, capital murder cases

Federal question

Involves important cases of constitutional interpretation as well as lawsuits file pursuant to federal legislation or treaties

Venue

Involves the right of a defendant to be tried in a proper court within a specific geographic area -Determines which court with jurisdiction will hear the case -Determined by Statute -Where the crime occurs or where defendant lives

What is venue?

Mistake

Must be a MUTUAL mistake of a MATERIAL FACT to have relief -Material Fact = essential element of the contract -EITHER party can pull out -If Unilateral mistake --> NO relief -If mistake of Value --> NO relief

Special Damages (Special Injuries)

Must be interference with a person or his property in the form of an arrest, attachment, injunction, or sequestration --Purpose: Assure good faith litigants access to court without fear of intimidation by counter-suit for malicious prosecution AND prevent frivolous lawsuits

Genuine and Real Assent to the Contract

Must freely and voluntarily WANT to enter into contract

Social Insurance Theory

Manufacturer is better equipped than the consumer to pay for damages since manufacturer can pass it on to the consumer

What is Promissory Estoppel/Detrimental Reliance? How does it differ from just pledge?

Many courts enforce certain promises that are not supported by consideration --No consideration in promise (no money put down)

MACT

Maximum Achievable Control Technology --Companies emitting toxic air pollutants must install MACT --Set without regard to economic or technological feasibility

Market Extension Merger

Merger between 2 firms in similar fields but not in the same exact field 1) Geographic 2) Product

Conglomerate [Diversification] Merger

Merger of firms outside of the first 3 types which is normally the merger of 2 totally unrelated business --i.e. Cigarette companies

Fair Labor Standards Act (1938)

Mid New Deal, passed during Great Depression 1) Minimum wage/ "living wage" 2) Overtime pay 3) Restriction on the use of child labor

Ratification

Minor accepts contract -Can be by words or actions

Disaffirmance

Minor voids contract -Can be by words or actions -May owe duty of restitution

Castle Doctrine/Stand Your Ground Laws

Minority Rule that some states allow you to use deadly force to protect your property --Allow homeowners to claim self-defense after shooting an intruder

Illinois v. Rodriguez

Must have permission of the co-occupant to have a warrantless search -If one co-occupant objects, then it is an invalid search, even if another consents

Agent's Duty to Notify

Must keep Principal informed

Agency Shop

Must pay unions something for benefits --Don't have to pay full dues but don't get full benefits

Griggs Test [Griggs v. Duke Power]

Must prove Prima Facie case (do NOT have to prove intent to discriminate) 1) Identify practice that results in unintended discrimination 2) Show that a protected class is disadvantaged by the identified practice 3) Show that the practice has an adverse impact on the workforce --Employer must prove business justification for practice --Employee must show there is a less restrictive screening practice that accomplishes the same goal

Disparate Impact

Must show the employer has/had same practice that even though neutral on its face has an illegal discriminatory impact --Use Griggs Test

What is the only type of mistake that allows a person to get out of a contract?

Mutual Mistake of Material Fact --Either party can void the contract

Agreement

Mutual consent

Bilateral Contracts

Mutual exchange of promise, promise for a promise -Enforced once promise is made by the offeree -BOTH sides are promisors and promisees

Can you trace the transitions of common law assumptions about liability from MacPherson to Sindell? Can the case be made that the common law has been very responsive to changes in the economic system?

N/A

Misappropriation Theory

Person should be criminally liable for Rule 10(b) violation if --That person conveys nonpublic info which was to be confidential --Even if the shareholders of the employer corp. are not injured

**Novation

Substitutes new party for one of the original parties --Impliedly or expressly revokes and discharges prior contract --i.e. Subleasing

Off-Duty Conduct Statutes

Montana and about 30 other states prevent firing someone for their legal activities outside of work --Colorado, NY, and North Dakota protect "Legal recreational activities"

Montana Statute

Montana provides comprehensive protection from employment-at-will, and is the only state to do so: 1) Discharge against "public policy" 2) In violation of written personnel policy 3) "Not for good cause" --Limits damage to 4 years plus interest

Preponderance of the evidence

More likely than not

Merck & Co.

Pays with Board with a combination of salary and stock/stock options -Increases their motivation to act in the interest of the shareholders by increasing worth of the stock

Market Share

Percentage of the relevant market controlled by the firm --Can be as small as one city, or as large as whole country, depending on where product is sold

Material Breach

Performance is totally insufficient --Non-breaching party is discharged from contract --Breaching party responsible for damages

Satisfaction

Performance of the substituted obligation

Permanent Nuisance

Permanent and fixed -- continues indefinitely

6) Can an airline lawfully refuse to hire male flight attendants on the grounds the consumer surveys show customers far prefer female vs. male attendants?

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6) What are the differences between a writ of attachment, writ of Garnishment, and writ of Execution?

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6) Why is the endangered Species Act the most hated of the environmental laws?

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CHAPTER 5

CHAPTER 5 CONT'D

CHAPTER 6 (PART 1)

CHAPTER 6, PART 2

CHAPTER 9 REVIEW QUESTIONS

CHAPTER 9 REVISED

38) What are the different ways to prove discrimination under Title VII?

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4) Do you think the federal gov't should enact (under the FLSA) a $10 per hour "living wage"/minimum wage?

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_______ are among the most highly regulated private organization in the country

Unions

4) If airline pilots at American Airlines go on strike, their actions will be governed by what federal law?

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5) Give an example where non-unionized workers will likely be protected in their actions by the NLRA

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5) What are the externalities and how do they impact the environmental world?

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What is the four-prong test of the Central Hudson Gas & Electrical case? How is it applied?

-"Balancing of interest" Test: 1) Is speech legal? 2) Is governmental interest substantial? 3) Does the regulation directly advance the asserted governmental interest? 4) Is the restriction more extensive than is necessary to protect the state's interest?

Regulation E

378

Alternate Dispute Resolution (ADR)

ADR takes over 99% of EEOC cases b/c EEOC was overloaded

Causation

Breach must cause the harm 1) Cause in Fact 2) Proximate Cause

Union Shop

Could be made to join a union IF you took the job

Where does the U.S. Court of Appeals sit that includes Texas Federal Courts? A) Houston B) Dallas C) Austin D) New Orleans E) Baton Rouge

D) New Orleans

Promisor

Promise to do or not do something

Any violation of ownership gives rise to:

Infringement Claim

Reynolds v. U.S.

No polygamy, even for religion

Rejection

Offeree says no

Offeror

Party making the offer

Twyman v. Twyman

Texas does NOT recognize the Tort of Intentional Infliction of Emotional Distress

Child Safety Protection Act (CPSA)

To prevent children from choking

Deterrence

Prevention, intended to alter behavior to prevent accidents

11) When can an employer require an employee to take a drug test?

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12) In Consumer Credit know each of the laws: a. Purpose b. Who enforces c. What does it require? d. Penalties

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12) When can an employer require an employee to take a photograph? What type of employer?

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13) What are examples of "being against public policy" and therefore examples of wrongful-termination?

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13) What rights are employers given under Taft-Hartley?

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14) When does an employee have a right to privacy? When does an employer have a right to know?

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15) How does this vary between private and public employers?

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17) What law established minimum wage?

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17) What type of unions are American unions? European?

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18) Who is excluded from coverage under the FLSA (Fair Labor Standards Act)?

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2) What are the 2 major concerns of the secured party?

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NY Times Co. v. U.S.

"Pentagon Papers case" -Supreme Court allowed publication even though it made the U.S. look bad during Vietnam b/c it was old news, irrelevant to the day -Case of censorship

Negotiation

"Settlement" -Informal -Done by or w/out attorneys -About 90% of civil cases settle prior to trial

22) What are Workers' Comp Laws? Type of laws? (State or Federal)

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23) What are the types of benefits available in Worker's Comp?

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25) What is OSHA? What are its responsibilities?

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26) What is the Equal Pay Act of 1963? Who does it apply to? For what?

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27) What are the 5 classes of discrimination under Title VII? What are the expansions of these areas?

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28) When did Affirmative Action come about? Why?

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29) What is the coverage of the Age Discrimination in Employment Act?

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30) What is the coverage of the Americans with Disabilities Act?

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31) What are the off-duty conduct statutes?

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32) What agency enforces Title VII?

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What is Rule 16(b)? To whom does it apply? When? Defenses?

"Short-Swing Profits" Rule -Capital Gain made by named insiders buying AND selling their own company stock within any 6 month period [180 days] goes to the corporation treasury -Limited, but Absolute Rule (no defenses) -Profits NOT offset by loses in the 6 month pd

36) What are the exceptions to the Equal Pay Act of 1963? Title VII?

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Legislative Laws

"Statutory Law" -Laws/statutes that constrain businesses' behavior -Passed by Congress, state legislatures, and municipal ruling bodies/gov't entities

Federal Food and Drug Administration (FDA)

--Began with Pure Food and Drug Act (1906) --Governmental Food & Drug Safety --Response to "The Jungle" by Upton Sinclaire --Originally under the Dept. of Agriculture, moved to Federal Security Agency --Finally moved to the Department of Health and Human Services

Subjective Impossibility

"I can't do it" NO judicial relief b/c from a Reasonable person's standard, not your standard --> Still Liable --i.e. Failure to deliver on time due to shortage of trucks --i.e. Failure to pay on time because the accounts receivable have not been paid

37) What agency enforces the Equal Pay Act of 1963?

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Objective Impossibility

"It can't be done" --As determined by the Courts

Substantive Due Process

"Meat of the law" -Sliding scale

in personam jurisdiction

"Over the person" Jurisdiction -Court has territorial jurisdiction over the persons within its area of authority -Power to order defendant to court -Accomplished by serving the defendant with a summons

in rem jurisdiction

"Over the thing" Jurisdiction -Court has territorial jurisdiction over the property within its area of authority -Property must be the subject matter of the lawsuit ---Can be tangible or intangible

Civil Rights Movement

3rd major event in the struggle between states' rights and the power of the national gov't -

Trent Pottery Case (1927)

A Whole bunch of individual and corporations got together to fix bathroom fixtures --Had 85% of the market --Horizontal Price Fixing --Defense: Not hurting the consumer --RULING: Power to fix prices is Per Se Illegal

Mesothelioma

A cancer of the lining of the lungs caused by exposure to asbestos and is usually fatal

Counterclaim

A cause of action by the defendant against the plaintiff -Allow parties with disputes to settle all of their claims at once

circle 'r' denotes

A registered trademark under Lanham

writ of certiorari

A request filed for an appeal to the Supreme Court -Reviewed by Supreme Court

Contract Law

A system of rules for enforcing promises and breaking promises -Gives the extent to which: ---promises are legally enforceable and ---consequence of breaking the promises -Provides a mechanism for the enforcement of both functions

What is the Principal-Agent Problem?

How to ensure that Agent will always put the interest of Shareholder/Principal first

Credit Repair Organization

Any entity or person involved in interstate commerce that sells, provides, or performs any service for compensation to improve any consumer's Credit Record, History, or Rating, or provide advice....374

A business' right of freedom of speech is found in what amendment? A) 1st B) 4th C) 5th D) 14th E) None

A) 1st

Express Authority

Agreed Power

Federal Trademark Dilution Act (1995)

Allowed Trademarker holders to use non-competitors for Blurring & Tarnishing

What is a proxy?

An agent who votes on behalf the shareholder

4) What test do you use to prove the disparate impact? A) Howey Test B) Griggs Test C) Franklin Test D) Schwinn Test E) HHI

Intervening Illegality

Change in law terminates offer

Petition

Civil lawsuit filed by a plaintiff with the clerk of the applicable court -Aka Complaint

Conditional Concurrent

Contract are conditional on each other

Oral Argument

Occurs before the appeals court where both parties have a limited time (30 minutes) to orally persuade the appellate judges that their position is correct

34) What test did the Griggs v. Duke Power case give us?

Griggs Test: --

Implied Contract

Inferred from the conduct of the parties ---i.e. sitting in the barber chair -"Implied-by-fact" Contracts

Common Law

Judge-made law -Legal remedies -Monetary damages -More common than equitable damages

What is the difference in an LLP and an LLC?

LLP: More like a partnership - but, All partners can take part in management AND have limited liability --Separate Legal entity

Affirmative defense

Legal defenses that must be proven by the defendant

District of Columbia v. Heller

Made 2nd Amendment right to bear arms applicable to the states

Compounding Drugs

Meningitis outbreak --From New England Compounding Center (NECC) --One of the deadliest medical outbreaks in the US (>50 killed, >700 sick) -->Led to massive changes over who has authority (FDA)

Standard of Proof

Must be proven by a "more likely than not" standard

Establishment Clause

National Gov't cannot establish a national religion

Toxic Substances Control Act of 1976

New chemicals must be tested and sent to EPA --EPA can limit or prohibit manufacture or sale of toxic substance & can require special labeling

Herfindahl-Hirschman Index (HHI)

Normally determines whether a company can merge or not --Determined by adding the squares of the percentage market shares in the relevant market --Gov't does NOT HAVE to follow this

Promissory Estoppel (Detrimental Reliance)

No consideration in promise (no money put down) -A reasonable person would rely on promise and change position, thereby will suffer a substantial loss if promise not kept -These promises are enforceable as a matter of social policy -Difficult to win -- desperate, on the mercy of the court

Conditional Contract

No duty to perform if condition not met 1) Conditional Subsequent 2) Conditional Precedent 3) Conditional Concurrent

Void

Not a contract, not recognized by the law (never had legal existence) -i.e. murder for hire

Executory Contract

Not fully performed by either party

Communication of the offer

Offeree must know of the offer -i.e. reward: must know of the reward offer to collect the reward

Acceptance

Offeree's expression of assent/agreement to the EXACT terms of the offer -Mirror Image Rule: ---Any changes to the original contract make it a NEW contract

Irrevocable Offers

Option Contract -i.e. car towed -- ask the dealership to hold a car for you ---Under common law, would have to put down a deposit for the car in order for them to be req'd to hold the car

Depositions

Oral testimony of witness before attorneys and court reporter -Uncover information (can use hearsay) -Preserve testimony -Set the testimony (impeach witness, credibility) -Force opponent to take a position and stick to it -Transcript signed by Deposee presiding over the Deposition --> Admissible in court -DISADVANTAGE: Most expensive method

Any type of Boycott (Horizontal or Vertical) is ___ Illegal

Per Se

Continental TV v. GTE Sylvania

RULING: upheld Sylvania under Rule of Reason --Sylvania terminated Continental TV as dealer to sell TVs directly to franchised retailers and give them territorial restrictions

Counteroffer

Rejection w/new offer -Terminates original offer -Parties switch: offeror becomes offeree and vice versa

Noise Pollution

Requires EPA to establish emission standards for max. noise levels --$50,000 per day + 2 years imprisonment

Alright v. St. Lewis

Rule of Reason: sometimes Vertical Price fixing is necessary

Substantial Performance

SLIGHT deviation from full performance --Results in payment minus damages for incomplete performance or suspension of performance until other party fully performs

Nuclear Waste Policy Act of 1982

Selects and develops a permanent site of the disposal of nuclear wastes

Outside Directors

Some companies allow ONLY outsiders who have NOT stock in the company to be on the Board of Directors --In the best interest of shareholders --Not the case in most bylaws

SIP

State Implementation Plan --It is the state's

Express Contract

State Orally or Written that sets for the duties/responsibilities of both parties, that is enforceable

Primary Boycott

Strike -Legal if contract is expired

Rubin v. Coors Brewing Co

Supreme Court struck down a 60 year old federal restriction against beer companies putting the alcohol content of the beer on their labels -Regulation did not directly and materially advance the governmental interest -"Balancing of Interest" (Four Prong) Test applies to this case too

Supremacy Clause

The Constitution is the supreme law of the land -Federal law is supreme -State law cannot conflict with national law if Congress so chooses

Judicial Interpretation

The courts interpret the law and determine the facts if there is no jury

Rejoinder

The defendant's "rebuttal" after the Plaintiff's Rebuttal -NO new evidence

Employment-at-Will

The employer can fire employee for almost any reason and the employee can quit at any time, based on Common Law --Employers are allowed to create standards that do not have to be work related --Generally, employees not required to give employer a reason for quitting

Original Court Jurisdiction

The power to hear a case for the first time -The authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments

What is Agencies' biggest power?

Their Enforcement Division that they can use to enforce the rules/regulations that they pass

EEOC v. Mercy Health Center

There can be discrimination in FAVOR of a particular sex --Women can request a female nurse and refuse a male

Anti-Federalists

Those opposed to the proposed Constitution

Tippees

Those that receive information from people with insider information inherit the insider's liability

What is meant by the phrase "separation of ownership and control"?

Those who have capital but no management skills can contribute to the company through buying shares and therefore owning part of the company, but control is left up to people with considerable management skill

Pullman Strike (1890)

US Army used to break the strike --Pullman cut workers' salary b/c he wasn't "making enough money" --> Sympathy Strike: Railroad went on strike saying it wouldn't carry anything manufactured by Pullman --Pullman made a good deal of RR cars, including the US Mail cars --> Federal Troops sent into load the mail car (breaking the strike)

Harris v. Mickel

Under Texas Law, once an Offer is rejected, it is thereby terminated and consequently it cannot be accepted

Red Herring

When it has not been approved by the SEC, not final yet --Printed in red ink --Stop and think about it, there's something fishy about this

Intrastate commerce

Within a state

Assumption of Risk can be used if Plaintiff:

a) Had knowledge of the facts giving rise to the dangerous situation b) Knew the situation was dangerous c) Knew the nature and extent of the danger d) Voluntarily did the dangerous activity

Judge-made Law

aka "Common Law"

Clayton Antitrust Act of 1914

aka "Gap Filler Law" --Supplements Sherman, fills in the gaps

When can a child not disaffirm a contract? At what age does someone become an adult? What is the effect on the contract if a child uses a fake ID in a majority jurisdiction compared to a minority jurisdiction? When does a child have to pay restitution

can NOT disaffirm for: 1) Necessities 2) Military enlistment 3) Marriage contracts 4) Statute: insurance, banking, public trans., student loans --18 years old --Majority Rule = child can still disaffirm contract w/fake ID --Minority Rule = child bound by contract resulting from fake ID --Must pay restitution only if able to (i.e. return object of the contract)

Beyond a reasonable doubt

high standard of proof necessary in a criminal court

Vertical Minimum Price Fixing

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Promisee

Party to whom the promise made

What is the time period for each type of intellectual property?

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When can a state interfere with interstate commerce?

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When is a manufacturer liable for a defective product?

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Creditor

Party who extends the credit --"Lending Institution"

Debtor

Party who owes the debt --"Consumer"

What are some possible arguments that requiring drivers to use seat belts has hurt driver safety?

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What are some practical and legal objections to the delegation of legislative powers to administrative agencies?

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Concurrent Power

Areas where both the national and state gov'ts can pass legislation -Shared power

What are the advantages of a corporation, partnership, and sole proprietorship? Why would you pick one over the other?

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What court do you go to for judicial review of the final agency decision?

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Freedom of Information Act (1966)

--Federal agencies must make agency info. available to "any person" --Any person can request the records of agency that produced the records

What factors generally explain the rapid growth of administrative agencies?

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MacPherson v. Buick Motor Co

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Statutory Law

"Legislative Law" -Laws/statutes that constrain businesses' behavior -Passed by Congress, state legislatures, and municipal ruling bodies/gov't entities -Most of the legal environment of business and regulatory role of the law

quasi in rem jurisdiction

"Sorta over the thing" jurisdiction -Involves property but the property does not have to be the subject matter of the lawsuit -State courts historically abused this power

Failure to correct Penalty

$7,000 PER DAY

False statement in OSHA records

$7,000 PER DAY

OSHA Penalty per violation

$7,000 per violation

Repeat or willful Penalty

$70,000

Elements of Fraud

(Tort) 1) Misrepresentation 2) Intent: attempt to DECEIVE, and a REASONABLE person would have been received 3) Justifiable reliance on misrepresentation 4) Innocent Party injured --i.e. Con Man

Request for Production

(of documents) A request that the other side produce certain requested documents that are relevant to the dispute at hand -Purpose: inspect, examine, and copy -Some info protected (formulas, customer lists) - Motion for Protection -If party does not respond, can be held in contempt -Impact on business: --Expense, disruptions, time, harassment tool -Subpoenaed: legal order for evidence

Texas Statutory provision for Fraud in Real Estate or Stock

--False representation of a past or existing material fact when it is made to a person for the purpose of inducing that person to enter into a contract AND relied on by that person in entering into that contract

American with Disabilities Act (ADA)

**Rehabilitation Act of 1973: --Covers traditionally handicapped people --Only LAW that mandated Affirmative Action ADA: --Worker must be qualified without reasonable accommodations OR ----with required reasonable accommodations that MUST be provided by employer --Supreme Court and Congress disagree on who is "disabled"

Arizona v. Maricopa County Medical Society

--2 medical societies formed 2 foundations for medical care as alternative too existing health insurance plans --Doctors had to agree not to charge more than max. fees set by foundations --Court ruled Per Se ILLEGAL

Drug-Free Workplace Act

--Applies to ALL companies with $25,000 worth of business with the Federal Gov't --> Must prove that their company is drug-free

How do you obtain a copyright?

--Automatic for authors, just have to claim it --Automatic right for works created after Jan 1, 1978 --Through registration with U.S. Copyright Office

What are the differences between a bilateral and unilateral contract?

--Bilateral: Mutual exchange of promise (promise for promise, enforced once promise is made by offeree) --Unilateral: One promisor, promise for an act (offeree accepts by PERFORMANCE)

Independent Executive Agencies

--Boards and Commissions --Independent of the cabinet level position, but NOT independent of the President --Still Executive control --i.e NASA and EPA

Express Warranty

--Can be waived by claiming no express warranties given --Most manufacturers do NOT give Express Warranty

What can the innocent party do in response to repudiation/anticipatory breach?

--Can discharge the contract if they choose --Wait to see if the breaching party changes their mind --Can treat contract as breached and find replacement or cancel it

Limited Partnership

--Certificate of Limited Partnership required w/ state official --Part Partnership, part Corp. --At least 1 General Partner and 1 Limited Partner (silent partner)

Insider Trading Sanctions Act (1984)

--Civil and criminal penalties for insider trading by anyone with inside information --Includes Aiders and abettors --5 year statute of limitations

What is the difference between a conditional and unconditional contract? What are the types of conditional contracts?

--Conditional: No duty to perform if condition not met 1) Conditional Subsequent 2) Conditional Precedent 3) Conditional Concurrent --Unconditional: Absolute, contract MUST be performed

What is the difference in Contributory Negligence and Comparative Negligence?

--Contributory = Both parties are negligent and there is NO recovery --Comparative = Both parties negligent, assign % of negligence to parties

Independent Regulatory Agencies

--Created by Congress --Heads are appointed for a term, can NOT be fired by president --Don't have to answer to anyone --Only way they can be removed before term is up is with cause --Congress controls agencies by controlling the money

Executive Agencies [Dependent Agencies]

--Created by Executive Order --Under direct control of the President, hired and fired --i.e. Department of Labor, OSHA --Called Departments, Administrations, or Division

Sindell v. Abbott Laboratories

--DES drug case for women w/history of miscarriages --Problem: there were several manufacturers, could not prove who made the drug --> Market Share Liability let manufacturers share in liability --Pay % of the damages equal to % of product manufactured --Products MUST be identical no matter which manufacturer made them

Rights in Collateral

--Debtor can hold and use property --Secured Creditor can seize property if Debtor does not pay debt

Compare the Torts of Defamation, Production Disparagement, and False Advertising. What is a common element of the three Torts? Do you think allowing a cause of action for those Torts promotes efficiency?

--Defamation: False statement that tend to injure reputation --Product Disparagement: Form of defamation, but about a product or property made with malice that results in special damages --False Advertising: False statements about YOUR product -----Common element =

Product Liability

--Defense USED to be "Caveat Emptor" or "Let the Buyer Beware" (If it hurts you, its your fault for buying it)

Structure of FDA

--Dependent/Executive Administration 1) Office of the Commissioner ---Medical Products & Tobacco ---Foods ---Global Regulatory Operations & Policy ---Operations

What are the differences between executed contracts and executory contracts? How does the law make these terms more difficult?

--Executed: Contract fully performed by all parties --Executory: Not fully performed by either party

What are the differences between an express contract, implied contract, and implied by law (quasi contract) contracts?

--Express: stated orally or written --Implied: Inferred from the conduct of the parties --Implied by Law (Quasi): Not a true contract

Junk Bonds

--Extremely high risk bonds (high return IF they pay off, but rarely pay off)

Saccharin & Delaney Clause

--FDA assumed more power over food additives --Zero Risk standard

General Powers of Food, Drug and Cosmetic Act

--Greatly expanded regulatory power of FDA in food and drug areas; Extended power of FDA to: 1) Cosmetics 2) Therapeutic Devices --New enforcement penalties (i.e. Injunctions)

18) Know the Haymarket Riot, the Pullman Strike, and the Homestead Strike

--Haymarket: 9 police killed, 9 union leaders executed --Pullman: stopped by army b/c of mail --Homestead: manager paid guards to beat workers back to work

Implied Warranty

--Henningsen v. Bloomfield Motors

General Property exemptions

--Home furnishings --Provisions for consumption --Farming/Ranching vehicles --Tools, equipment, books, and apparatus (incl. boats & motor vehicles) --Wearing apparel --Jewelry --2 firearms --Athletic & sporting equipment --Pets

Texas LLC Act

--If member of LLC dies or leaves organization, LLC is "dissolved" by the state (had to form new LLC to continue biz) --Can only last 30 years --

Merger Guidelines

--If the pre-merger HHI is less than 1,000 when the market is deemed to not be concentrated and the merger will usually be allowed --If HHI is greater than 1,800 the market is highly concentrated and the merger will probably be challenged

What can NOT be registered under Lanham?

--Immoral, deceptive or scandalous matter --Flag or coat of arms --Name, portrait, or signature of living person --Mark too similar to another trademark --Consists of a mark

What are the implied warranties? When can they be waived? How?

--Implied Warranty of Merchantability: the product conforms to the expected standard of care of a similar product --Implied Warranty of Fitness: Seller is aware that the buyer needs the goods for a particular purpose and then warrant that the product will meet those needs

Major Activities of CPSC

--Information, Collection, and Dissemination --Requires Manufacturers to keep records, supply info regarding safety, and furnish notice & description of new products --Conduct hearings on consumer product safety --Product Safety Standards (i.e. min. age label) --Ban products

What are the intentional Torts? How do they vary from Negligence and Strict Liability?

--Intentional = deliberate action that results in harm --Negligence = unintentional, failure to use reasonable care that results in harm --Strict Liability = Liability without fault (wild pet, etc.)

Vertical Price Fixing

--Involves RPM Agreement

Writ of Attachment is available ONLY if Debtor:

--Is about to leave the state --Takes the property out of state --Is hiding the property to defraud creditors --Has already disposed of some of the property --Is about to sell the property under false pretenses --Is not a resident of Texas

Major CPSC Recalls

--Lawn Darts --Thomas Train Toys (made with lead paint--> lead poisoning) --Buckyballs & Buckycubes (magnetic balls, dangerous when swallowed; case still going on)

What are the liabilities in a contract situation of the parties to an agency?

--Liable for any damages of Principal if Agent breaches a duty --Liable to Principal for any torts or acts committed in excess of express or implied authority --Can depend on disclosure of Principal: ------Agent w/Actual Authority: Principal bound to 3rd party, Agent not liable ------Agent w/Apparent Authority: Principal bound to 3rd, Agent liable to P ------Undisclosed P: Agent liable to 3rd, P liable to 3rd if Agent acting w/in scope of authority ------Principal Liable if Agent has Actual OR Apparent Authority

What is the difference in a member-managed and a manager-managed LLC?

--Manager-managed: Managers are agents for members who have limited liability (NO personal liability for LLC or others) --Member-managed: Resembles partnership in structure and operation, but NOT liability (each member gets one vote)

Texas Common Law Fraud

--Material misrepresentation, falsehood, or untruth with the intent to deceive --Speaker knew representation was false or made it recklessly without any knowledge of its truth --Speaker made representation with the intent that it should be acted upon by the party --Party acted in reliance upon the representation and thereby suffered

What are the differences between Negligent Torts and Intentional Torts? Does either require that harm is intended?

--Negligent Torts: Failure to use reasonable care --Intentional Torts: Deliberate action, which results in injury -----NEITHER require that harm is intended

Texas Law on Libel

--No defamation of the dead --Applies all common law defense --Adds statutory defenses for Newspapers & Broadcasters

Uniform Trade Secrets Act

--Not very helpful --Still use common law to enforce, but it is still difficult

What are the differences between ways to terminate an offer and terminate a contract?

--Offer: revocation, rejection, lapse of time, counteroffer, or termination by law --Contract: validity, void, voidable, unenforceable

Nutrition Labeling and Education Act (NLEA) of 1990

--Only applies to foods regulated by FDA --Serving size still a problem GOALS: 1) Make labels easier to read and understand by the consumer 2) Standardize serving sizes 3) List amount of servings per package 4) # of calories, fats, saturated fats, and cholesterol 5) Standardize language used in food labeling 6) Make manufacturers' prove health claims

Monopolization in Sherman Act

--Outlaws any ATTEMPT to monopolize

Conditions for Manufacturer to be liable

--Product must be used lawfully --Product must be used for the intended purpose

Revised Uniform LLC Act (RULLCA)

--Proposed by National Conference of Commissioners on Uniform Laws --One member leaving was NOT a terminating event as long as .................................... --Creation of LLC by filing Articles of Organization w/ Sec. of State (Articles of Formation in TX) --Company name must contain some indication of LLC for the creditors --Duration must be stated (can be perpetual) --Must state purpose of LLC (can be for all lawful biz purposes) --Can select the type of management (unlike corporations)

Texas Penal Coe Theft statutes

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What are the "R" words?

--REVOCATION (Offeror takes back the offer Prior to the acceptance by the offeree) --REJECTION (Offeree says no) --RATIFICATION (Acceptance of contract) --RESTITUTION (Fair value damages) --RESCISSION (Both parties agree to terminate contract without performance) --REPUDIATION (One party In Advance of Time of Performance notifies innocent party that they will not perform under contract) --REFORMATION (Rewrites the contract to express true agreement of the parties)

What is the difference between real duress and personal duress? What is the effect of each on contracts?

--Real Duress = someone forces another to enter into contract against their will (can Rescind the contract) --Personal Duress = Simply economic in nature (no relief)

EEOC v. Sambo's of Georgia

--Restaurant did not hire Sikh who would not remove facial hair --RULING: Restaurant was justified in wanting to have a "clean cut" image for concerns of sanitation and customer reaction

Rule of Reason Violation of Section 1 is NOT automatic

--Restrain trade and may lessen competition to some degree --Also create benefits that outweighs the damage they do --Courts reserve the right to weigh the evidence AND determine whether the agreement is defensible on the grounds of its overall benefit to society

"Short Swing Profits" Rule

--Section 16(b) --Capital Gain made by buying AND selling their own company stock within any 6 month period [180 days] --Limited but Absolute Rule --Named insiders (officer, manager, director, shareholder owning 10%) --Any profit they make w/in short swing time period goes to the corporation treasury

Market Share Liability

--Sindell v. Abbott Lab --Products must be identical no matter which manufacturer makes them --Limited to a handful of cases

Major Types of Business Organizations

--Sole Proprietorship --Partnership --Corporation --Limited Liability Company (LLC)

Ethical Consideration

--Special interest groups lobbying for legislation or regulations that favor themselves at expense of public interest --Following law and suffering additional costs when you could ignore the law and get away with it (Can be costly/fatal to the honest business)

Corporate Law

--State Law --Articles of Incorporation --Can be filed in another state as a "Foreign Corporation"

Remedies against infringers

--Statutory Damages higher than actual damages --Only if registered copyright

River & Harbor Act (1886)

--To protect the ships from damage (NOT environmental) --Gave Clean Water Act Permit System --Navigable waterways

Limited Liability Limited Partnership (LLLP)

--Tries to combine LLP and LP --General Partner can have limited liability, like a limited partner in LP --Very limited in scope, untested

White Motor Co v. US

--Truck company required it's dealers to sell trucks only in an exclusive territory around their dealerships --White Motor sold trucks directly to gov't entities, thereby keeping its dealers from selling to those customers --Defense: it was a small company in an industry dominated by large companies so practices were necessary to force its dealers to concentrate on competition, not with each other --RULING: In favor of White Motor based on Rule of Reason

Limitations of Debt Collectors

--Unusual or inconvenient time (anytime other than 8am - 9pm) --Unusual or inconvenient locations (home & work is normal) --No threat of violence or criminal acts --No misrepresentation

What are the differences between valid, void, voidable, and unenforceable contracts? -Especially between Void and Unenforceable

--Valid: All elements are present, enforceable --Void: Not a contract nor recognized by law (i.e. mercenary) --Voidable: valid contract that is able to be voided, but not yet void (i.e. w/ a child) --Unenforceable: Contract that was valid at one point in time, but something happened to render it unenforceable

What are the different ways to denote a trademark? What do they mean?

--circled r = registered trademark under Lanham --"TM" = claiming a Trademark --"SM" = claiming a Service Mark

Which of the Amendments to the Constitution are important to the business world? Why?

-1st Amendment: Freedom of speech is not as protected for a business as it is for individuals

Unconditional Contract

-Absolute -MUST perform contract

What are the types of opinions that a court can render? What are the differences in each?

-Affirm: majority agrees with lower court -Reverse: majority disagrees with lower court -Modify: majority agrees with lower court but modifies rulings in some way (i.e. lowers $ award) -Remand: majority finds error and sends case back to trial court to re-try the case w/in guidelines of Appellate Court

What must be included in a Plaintiff's original petition?

-Basic facts to be proven -Facts to establish jurisdiction -Remedy sought -Under what authority (law)

Shopkeeper's Privilege

-Businesses: shoplifting - merchant has the right to reasonably detain suspect thief -Common Law

How do the Courts make common law? What is Stare decisis? How does this relate to precedent?

-By interpreting the law and applying the law by determining the facts -Stare decisis: previously decided cases should be followed unless there is a good, legal reason to change the previous decision -Precedent: when a court rules upon the facts of a particular controversy (normally only created by appellate courts)

Misrepresentation of Age (fake ID)

-Common Law: minor can still disaffirm -Minority Rule: hold minor to contract

Contract

-Consist of promises -A Legal agreement of the parties to do something not obligated to do or to refrain from doing something legally entitled to do

What is a contract? Elements of a common law contact? Texas contract?

-Consist of promises -A Legal agreement of the parties to do something not obligated to do or to refrain from doing something legally entitled to do 1) Mutual agreement 2) Consideration (payment term) 3) Capacity (legal wherewithal to enter contract) ----NOT children, drunken, or crazy people 4) Legality 5) Genuine and real consent to contract (Not forced to do it) 6) Some contracts must be in writing

What are the major provisions of the Sarbanes Oxley Act?

-Created audit committee of the Board of Directors, made up of Only OUTSIDE Directors -CEO and CFO must certify that certain financial statements are accurate -Internal control report must be included in the annual report to shareholders -Created Public Company Accounting Oversight Board (PCAOB) to establish and enforce ethical and auditing standards

What are the types of Judicial Systems? Differences in them?

-Criminal: violating criminal statutes -Civil: Disputes with other individuals or businesses -Administrative: Federal or State agencies

Negligence in Products Liability

-Design Defects -Selection of Material -Production process problems -Testing of product -Inadequate warnings

What are the different uses of a pretrial conference?

-Determine status--Docket control -Simplify issues -Plan trial -Judge can order alternate Dispute Resolution -Settlement tool -Numerous pretrial conferences

Principal's Duty to Agent

-Duty to cooperate with Agent - Principal has to do what agency relationship requires -Duty to Compensate Agent for agreed or customary compensation -Duty to Reimburse Reasonable expenses -Duty to provide safe work environment -Duty to Indemnify Agent for losses (unexpected reasonable expenses, including being sued)

Members in LLC

-Enter into Operating Agreement (Company Regulations in TX) ---Governs internal affairs and Relations among members, managers, and officers ---Can only be amended with consent of ALL members ---Division of income ---How membership is transferred (Disadvantage: NOT readily transferrable like a corp.)

How is the Federal Court System organized? What is the difference between them?

-Federal District Courts: ---4 districts in Tx, several courts in each (Brazos in Southern) ---Do NOT cross state boundaries -Federal Courts of Appeal: ---13 circuits (Tx in 5th) ---Precedent only binding within that court's circuit -The U.S. Supreme Court: court of Last Resort ---Sets National Precedent ---Also has Original Court Jurisdiction (RARE)

What are the different ways to classify laws? Know the differences of each type of law

-Federal and State -Private and Public -Civil and Criminal -Substantive and Procedural -Equitable and Legal Remedies

How are federal and state judges selected?

-Federal judges are appointed by the President and confirmed by Senate -State judges can either be appointed for life (RI), or elected (TX), or a combination of the two (CA)

Regulatory Role

-Governmental interference with private business -Directs and standardizes business activities to improve society

What sanctions can be imposed if you fail to follow discovery rules?

-Held in contempt and suffer jail or a fine -Dismiss pleadings -Bar evidence at trial -Order party to pay other party's cost

Regulation B

-Issued by Federal Reserve Board, as per ECOA --372 --

Agent's Liability

-Liable for any damages of Principal if Agent breaches a duty -Liable to Principal for any torts or other acts committed in excess of express or implied authority -Can depend on disclosure of Principal

Liability of the Principal

-Liable if Agent has actual authority (Expressed or Implied) -Liable if Agent has apparent authority

Absolute Privilege

-NOT absolute -i.e. Testifying in Court

"Open Field" Observation

-No warrant necessary -Established in Dow Chemical Co v. U.S.

Reporting Requirements for Insiders

-Officers, directors, and 10% shareholders must register w/SEC -Must notify SEC on timely basis of: 1) Purchase or sale of stock 2) Source of funds used to purchase stock 3) Reason for purchasing stock --Tells people on the outside what the insiders are doing

How does the President influence laws? How does the President make law?

-Presidential approval or veto of bills passed by Congress -President's exercise of appointing the heads of federal agencies and judges -Negotiation of treaties with foreign gov'ts (become law after Senate approval) -Spends funds for governmental uses -Executive Orders ---i.e. "Affirmative Action", "Don't Ask, Don't Tell", repeal of "don't ask don't tell" and replaced with open service

How Contracts are enforced:

-Reasonable persons standard -State Common Law ----Minority Rule v. Majority Rule

Lapse of Time

-Stated Time expires -Reasonable time passes (under the circumstances) ---Option contract

Compare the sliding scale differences in substantive and procedural due process and in equal protection?

-Substantive: Gov't only has to show a rational relationship to any legitimate governmental interest in economic issues, but must have a compelling interest in individual's fundamental rights -Procedural: capital punishment required the highest amount of due process, property cases require much less

How does the gov't use the power to tax as a regulatory tool?

-Tax deductions for businesses -Sin Taxes (alcohol, tobacco) -Legal drinking age -DWI alcohol concentration amount

Texaco v. Pennzoil

-Ten Billion Dollar Jury Award (largest Tort case in History) -Texaco interfered w/original contract between Getty and Pennzoil -Pennzoil won, settled for $3 billion -Texaco filed for bankruptcy

What are the major sources of law? Which is the most important source of law?

-The U.S. Constitution (Constitutional Law) -the Legislative bodies (Statutory Law; including state, municipal, and other governmental bodies) -The President (Executive Orders) -The courts (common/judge-made law) -Federal administrative agencies (Administrative Law) ---The U.S. Constitution is the most important

What are the differences in trial courts and appellate courts?

-Trial courts determine the facts -Appellate courts determine legal mistakes that were made during trial, no jury or witnesses

Adversarial system

-Truth and justice will prevail -Actual cases are tried in courts -Courts seek all the info. to get the right verdict

Vertical Maximum Price Fixing

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What have been the recent court limitations on the Commerce Clause? Cases? Effect?

-U.S. v. Lopez -Printz v. U.S. -U.S. v. Morrison ---Gov't can not use commerce clause in non-economic situations or violate the States' sovereignty principle, must have a substantial effect on interstate activity

Mediation

-Uses 3rd party to ASSIST settlement -Mediator does NOT make the decision, facilitates only -Pushes litigants to settle

Who is affected by Torts?

-When crimes are against Society -Torts against ONLY party that was wronged

Worker's Safety Strike

-Workers can go on this any time

1) Know each of the environmental laws

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1) What is the difference between "equal employment opportunity" and "affirmative action"?

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1) What is the difference between a secured creditor and an unsecured creditor? How do you get to have a scrutiny interest in collateral?

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1) What's the General difference between "business unionism" and "social unionism"?

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10) How has history and the economy shaped American Labor Unions?

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10) What agency enforces each of the environmental laws?

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10) What is Bankruptcy? Federal or State? What are the differences between Chapter 7, Chapter 11, and Chapter 13?

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10) What is the predominant type of employment relationship in the US?

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11) What is the difference between a closed-ended credit transaction and an open-ended credit transaction?

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16) What are the exceptions to employment at will?

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16) Why are the Sherman Anti-Trust and Clayton Acts important to Labor Law?

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19) What does the FLSA cover?

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2) Why is the nuclear disposal issue so controversial?

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20) What are the child labor provisions of the FLSA?

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21) What agency enforces the FLSA?

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24) When does Worker's Comp pay benefits?

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3) Do you agree with the "disparate impact" theory of discrimination?

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3) What is a possessory lien?

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3) What is the primary source for air pollution?

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33) What is the jurisdiction of Title VII?

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35) What state has comprehensive statutory protections from Employment at Will?

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39) What are the remedies under the FLSA? Equal Pay Act? Title VII?

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4) What are the differences in an Artisan's Lien, a Worker's Lien, a Landlord's Lien, and a Mechanics/Contractor's/Materialman's Lien?

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4) What are the major environmental interest groups? Political groups?

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5) How do you execute on a Lien? When?

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5) Why have other states not passed employment-at-will legislation similar to that of the State of Montana? Why do you think the Montana Legislature enacted this legislation in the first place?

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7) To what extent are gov't employees treated differently under the doctrine of employment-at-will than private sector employees? What US Constitutional protections apply to gov't workers?

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7) What are the different types of Homestead exemptions in Texas? What are the differences in the two?

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7) What are the penalties for the environmental laws?

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7) What the impact on union-organizing efforts of state "right-to-work" laws?

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8) How does section 8(c) of the Taft-Hartley regulate "free speech" in labor representation elections?

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8) Is it good human resource management for a company to adopt a "no-dating" policy for all its employees? What are the pros and cons of such a policy?

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8) What are the differences in the enforcement of the major environmental laws?

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8) What can be excluded when dealing with personal property? What are the limits? How does this differ for a family and a single adult?

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9) Do you agree with the US Supreme Court's 2006 decision in the case of Burlington Northern & Santa Fe Railroad v. White?

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9) What are the differences between a guarantor, surety, and co-signor? When is each liable?

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9) What is each environmental law designed to do?

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9) What issues led to the enactment of the Landrum-Griffin Act of 1959?

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Complaining about working conditions on social media:

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Discuss how SEC regulation affects corporate governance?

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How do you get to be an Administrative Law Judge? (ALJ)

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How does the CPSC get its information?

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In what ways do administrative agencies function similar to the 3 branches of gov't?

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KNOW THE YEAR OF THE SECURITIES EXCHANGE ACT (1933 v. 1934)

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What are the types of agencies?

1) Agency by Agreement (power of attorney, written/oral contract) 2) Agency by Ratification (Non-agent enters into agreement, Principal not bound until ratification) 3) Agency by Apparent Authority [Estoppel] (No actual authority by Agent) 4) Agency by Operation of Law (rises out of necessity or emergency)

Costs of Regulation

1) All regulation comes at price (actual cost is too great for benefit received) 2) Can have a negative impact (i.e. OSHA requirements too expensive --> leads to unintended burden on employees) 3) If Congress is motivated by enhancing public interest, how can we evaluate benefit to cost? ---Courts tend not to require cost-benefit analysis 4) Easy to see costs and condemn Administrative Agencies 5) Should look to see if society is benefited --> takes time 6) Costs result in businesses trying to find ways around regulation, which results in more rules (vicious cycle) 7) Businesses' ignorance of rule is not a defense against gov't enforcement

Purposes of Tort Law

1) Appeasement 2) Justice 3) Deterrence 4) Social Insurance

4 types of potential marks for trademark registration under Lanham

1) Arbitrary or fanciful (mark has no rational/logical relationship to product) 2) Suggestive (suggests a characteristic of product) 3) Descriptive (describes product, but NOT directly) 4) Generic (too common, rarely trademarked)

Personal Intentional Torts

1) Assault 2) Battery

What are the defenses to a Negligence case?

1) Assumption of Risk: -----Contributory Negligence -----Comparative Negligence 2) Superseding Clause (causal connection broken by intervening cause)

When other use your Trademark:

1) Becomes generic 2) Business with trademark must aggressively defend its right to trademark protection 3) Lost trademarks deemed to be generic (i.e. aspirin, trampoline, etc.)

Trademark Law Revision Act (1988)

1) Business owner's right to trouble damages in false comparative advertising situations (NOT available to individuals) 2) Ability to register trademark ahead of use => "intent to use" filing

What contracts have to be in writing? Why?

1) Cannot be performed within one year 2) Sale of goods over $500 3) Transfer of an interest in real property (land) 4) Promise to perform the obligations of others 5) Promise made in contemplation of marriage (prenuptial agreement)

Exceptions to 4th Amendment Rights

1) Closely regulated industries require no warrant 2) Hazardous industries often have statute expressly providing for warrantless searches 3) Exigent Circumstances

How is the court system involved in establishing law? (at least 3 ways)

1) Common Law -- interpreting and applying the law 2) Judicial Interpretation -- interpreting the meaning of state and federal statutes 3) Judicial Review -- Interpreting the Constitution

3 types of Monetary Damages

1) Compensatory 2) Consequential 3) Liquidated

Typical Adjudicatory Procedures

1) Complaint filed ---Sometimes by the Agency, sometimes a private individual has to file it 2) Alleged violator notified [business] 3) Agency investigates 4) Alleged violator can file response 5) Agency can negotiate a settlement (dismiss or take action) 6) Hearing before ALJ (Due Process applies) ---Defendant can bring evidence, cross-examination, and court record taken for appeal ---Differs from Federal Court: No jury, no absolute right to attorney if cannot afford one, 7th Amendment does NOT apply ---Relaxed rules of evidence, degree of proof depends on what Agency is trying to do (usually preponderance of evidence) 7) Written Opinion of ALJ 8) Appeals (1st to Board of Agency, then U.S. Court of Appeals)

Discharge of Contract

1) Complete Performance 2) Substantial Performance 3) Material Breach

Exceptions to author's rights

1) Compulsory Licensing 2) Fair Use Doctrine

Factors FTC and DOJ look at when considering mergers

1) Concentration of market power 2) Ease of entry into the market place 3) Economic efficiency 4) Financial condition of the merging firms 5) Politics

What are the defenses to the Intentional Torts: Assault and Battery? Intentional infliction of emotional distress? Etc.

1) Consent (given permission) 2) Privilege (legal immunity) 3) Self-defense (reasonable)

Why have Strict Liability?

1) Consumers given max possible protection from dangerous defects in products 2) Only the producer can prevent dangerous and defective products --> Strict Liability forces them to cure defects 3) Simplifies inevitable result in court 4) Manufacturers receive benefits from sales, should be responsible as well 5) Social Insurance Theory

Types of Contracts that must be in writing:

1) Contracts that cannot be performed within one year 2) Contracts for sale of goods over $500 (UCC)** ----Sales Receipts count 3) Contracts for transfer of an interest in real property (land) 4) Promise to perform the obligations of others 5) Promise made in contemplation of marriage ---Prenuptial Agreement

Know the differences in the different types of intellectual property.

1) Copyrights 2) Patents 3) Trademarks and Service Marks 4) Trade Names 5) Trade Secrets

2 forms of filing for Trademark

1) Current Use ---Used the mark ---Commerce that is interstate, territorial, w/foreign country 2) Intent to use

Personal Property exemptions

1) Current wages except past due child support obligations 2) Alimony payments 3) Child support payments 4) Professionally prescribed Health aids for Debtor or family member 5) Religious bible/sacred book 6) Certain retirement accounts 7) College savings plans --Family: $60,000 --Single adult: $30,000

Reasonable is determined by:

1) Custom of the industry or trade 2) Prior dealings 3) Nature of this agreement

Per se Violations of Section 1

1) Deemed blatantly anti-competitive 2) Automatic violations 3) Historically included Price fixing, Group boycotts, Refusal to deal, and some Market Divisions

New Powers of the FDA

1) Definition for all food was to be promulgated by the Secretary 2) New Controls over food additives 3) Control over radiation from electronic products

How to ensure that Agent will always put the interest of Shareholder/Principal first

1) Directly monitor Agent 2) Impose control systems to audit the Agent after the fact 3) Develop a system of rewards and punishments 4) Utilize legal remedies and sue the agent for damages

What solutions are available to reduce Principal-Agent problems in Corporate Governance? Private? Public?

1) Directly monitor Agent 2) Impose control systems to audit the Agent after the fact 3) Develop a system of rewards and punishments 4) Utilize legal remedies and sue the agent for damages

Business Intentional Torts

1) Disparagement 2) False Advertising 3) Intentional Interference with Contractual Relations 4) Interference w/Prospective Economic Advantage

What are the two major roles of law in the U.S.?

1) Dispute Resolution -- gives people/businesses a forum to settle differences 2) Regulation -- directs and standardizes activities (involves gov't intervention/involvement)

Criticisms of Regulatory Agencies

1) Dissatisfaction with unnecessary delays in the adjudication process 2) Perceived weaknesses of enforcement 3) Agencies too slow or too fast 4) Have outlived their usefulness 5) Pawns of the industries they are supposed to regulate [Regulatory Capture] 6) Bureaucratic behavioral problems (incompetence, laziness)

3 ways businesses involved in Torts

1) Due to actions of business or its employees 2) Due to business actions against another business 3) Due to business products

Elements of Negligence

1) Duty 2) Breach 3) Causation 4) Harm

Elements of Negligence in Products Liability

1) Duty of Care 2) Breach of Duty of Care (based on reasonableness) 3) Causation ---Actual Cause AND ---Proximate Cause (foreseeable) 4) Defense to Negligence Suits

What are the elements to a Negligence claim?

1) Duty to Care (Duty) 2) Failure to Exercise Care (Breach) 3) Injury or Harm 4) Causation

Factors in Deciding Type of Business Entity

1) Ease of operation (set up costs, difficulty) 2) Desired length of existence 3) Personal Liability 4) Tax consequences 5) Ease of sale of business 6) Ease of raising capital

First 2 major Corporations

1) East India Company (1600) 2) Hudson Bay Company (1670) --Most large entities of the time organized unincorporated joint stock companies (essentially Limited Partnerships)

Values of Capitalism

1) Efficiency 2) Opportunity 3) Individual Liberty

14) What are the remedies under Wagner for Unfair Labor Practices?

Specific Prohibitions of ULP

1) Employers cannot discriminate, in any way, based on employee's union affiliation or lack thereof (Hiring or Rewarding employees) 2) Explicitly illegal to tell an employee they were being fired for joining a union BUT ---Employers use "poor job performance" as reason to fire employee ---> Shifting the burden of proof to the employee

Justice

1) Ethical Retribution 2) Ethical Compensation

Reasons American Socialists were unsuccesful

1) Eugene V. Debs 2) Socialists Labor Party 3) Relatively short existence

Types of Federal Bureaucratic Agencies based on Control

1) Executive Agencies [Dependent Agencies] 2) Independent Executive Agencies 3) Independent Regulatory Agencies 4) Gov't Corporations

Contractual exceptions to Employment-at-Will

1) Express Contract ----Agreement of employment for a certain time ----Job security provided 2) Implied Contract ----Based on written or oral statements ----Based on Employers past actions, statements, policies, and practices 3) Implied covenant of good faith and fair dealing ----No good cause for discharge ----Years and years of good, loyal service by employee

Essential Elements of Defamation

1) FALSE Statements (don't have to know it's false, UNLESS it's against a public figure) 2) Statement must be published/broadcast to 3rd party 3) Harm suffered by victim

Defense in favor of Mergers

1) Failing Firm Defense. Must prove: ----Firm being acquired is not likely to survive ----There are no other potential buyers ----This is the potential buyer affects competition the least ----All other alternatives to save business have failed 2) Lack of Power in Industry ----US v. General Dynamics (1974)

Defenses to a claim of trademark infringement

1) Fair Use (i.e. Zatarain's fish fry) 2) Parody (1st amendment rights - i.e.Toys "R" Us v. Adults "R" Us not allowed)

Landlord's Lien

1) Farmers --Applies to crops for the growing season 2) Building owners on Tenant's Property --Exempt property that can NOT be seized if the Tenant does not pay" a) Wearing apparel b) Tools, apparatus, and books of trade/profession c) Schoolbooks d) Family library e) Family portraits & pictures f) Beds & bedding PAGE 359

Agent's duty to Principal in Corporation

1) Fiduciary Duty 2) Duty of Loyalty 3) Must act in best interests of principal 4) Can bind principal in contract & tort WHEN acting within scope

What are the legal duties of officers and directors?

1) Fiduciary Duty 2) Duty of Loyalty 3) Must act in best interests of principal 4) Can bind principal in contract & tort WHEN acting within scope

Written Opinion of ALJ includes:

1) Findings of fact 2) Conclusion of Law 3) Recommended disposition

FDA Regulates:

1) Foods 2) Dietary Supplements 3) Human Drugs 4) Vaccines, blood products, other biologics 5) Medical Devices 6) Electronic Products 7) Cosmetics 8) Veterinary Products 9) Tobacco Products 10) Pesticides & Drinking water

What is the extent of the coverage of the FDA?

Informal v. Formal Rule-Making

1) Formal Procedures are REQUIRED for substantive rules 2) Informal is OK for procedural rules or interpretive rules called regulations 3) Formal rule-making is mandated by APA ---In the interest of society to develop a record of the proceeding (i.e. FDA approval of new drugs) ---Can also be used when is expected to generate info. that the agency could otherwise not obtain 4) Property interests that are at stake can also determine the level of procedural due process ---i.e. medical exam v. mandatory retirement of 40 year-old pilots 5) Agencies sometimes try to hide substantive rules as interpretive or procedural to avoid formal rule making process

What are the differences in the formal and informal rule making procedures?

1) Formal Procedures are REQUIRED for substantive rules 2) Informal is OK for procedural rules or interpretive rules called regulations 3) Formal rule-making is mandated by APA 4) Property interests that are at stake can also determine the level of procedural due process 5) Agencies sometimes try to hide substantive rules as interpretive or procedural to avoid formal rule making process

Shareholder proposals can be excluded from proxy if:

1) Frivolous or repetitious 2) In the "ordinary course of business" --Rarely successful

11) What are the exceptions to Wagner?

1) Gov't employers (state, local & federal) 2) Railroad workers (Transportation industry -includes airline) 3) Domestic servants (maids, butlers) 4) Individuals employed by parents/spouse 5) Agriculture laborers 6) Supervisors/Management 7) Independent contractors (i.e. UPS & FedEx drivers) 8) Company Unions run by Employer

When can you get punitive damages in breach of contract?

1) Gross negligence OR 2) Willful and unwarranted disregard for safety --Torts

Elements of Intentional Interference w/Contractual Relations

1) Has to be a Valid contract between the parties 2) 3rd party must know about the contract 3) 3rd party must induce one of the parties to break original contract and damage other party

FMLA applies to Private Employees IF:

1) Have 50 + employees 2) For 20 + weeks per year

Partnership in LLP is usually required to:

1) Have insurance 2) Have separate funds available for that purpose ---Amount varies from state to state, but usually in 7 figure amount

3 Eras of Federal Regulatory Agencies

1) Historical [1887-1932] -----Railroads -----Drug Companies (FDA) -----Securities 2) New Deal [FDR] -----SEC -----NLRB 3) Socially Conscious [1960s & '70s] -----Pollution control (EPA) -----Workplace Safety (OSHA) -----Product Safety (CPSC) -----Hiring and firing practices in employment

How do Administrative Agencies influence gov't?

1) Implementation of laws 2) Enforcement of laws --Product Safety Regulations --Pollution control standards --Info for disclosure for the sale of securities\ --Workplace Safety --Labor organizing activities --Employer hiring and promotion practices --Antitrust

Implied Warranty

1) Implied Warranty of Merchantability 2) Implied Warranty for Fitness for a particular purpose --Manufacturers try to void with "As is" waivers

2 Implied Warranties Texas recognizes

1) Implied Warranty of Merchantability 2) Implied Warranty of Fitness for particular purpose --And always have implied warranty of Safety

What are the ways to establish territorial jurisdiction?

1) In personam jurisdiction 2) In rem jurisdiction 3) Quasi in rem jurisdiction

Just-cause employees can be discharged for

1) Incompetence 2) Employer has financial hardship 3) Insubordination by Employee

Remedies Available

1) Injuctions 2) Monetary 3) Ordering a targeted company to divest, get rid of, a given subsidiary to avoid antitrust problems

What are the elements of an offer?

1) Intent 2) Definite terms and conditions 3) Communication of the offer

3 major types of Torts

1) Intentional Torts 2) Negligence 3) Strict Liability

Texas requirements for Intentional Infliction of Mental Distress

1) Intentional and reckless 2) Extreme and outrageous 3) Caused Plaintiff emotional distress 4) Emotional distress is severe

Texas Elements to Invasion of Privacy

1) Intentionally intrude on solitude, seclusion, or private affairs 2) Intrusion highly offensive to reasonable person

SEC designs regulations to ensure

1) Investors have necessary and accurate info about terms and implications of a takeover 2) Small investors receive the same treatment and terms as the large investors in a takeover

Individual Exemptions

1) Labor Unions 2) Agricultural Cooperative or Associations 3) State Action Exemptions 4) Major League Baseball (MLB) [b/c "it's America's past time and does not affect interstate commerce"]

Advantages of LLC

1) Limited Liability for members 2) Ease of operation 3) NOT required to have meetings or minutes 4) Flexibility in mgmt. 5) Flexibility in Taxation 6) No limit on number or who/what can be members

What are the advantages to the LLC form?

1) Limited Liability for members 2) Ease of operation 3) NOT required to have meetings or minutes 4) Flexibility in mgmt. 5) Flexibility in Taxation 6) No limit on number or who/what can be members

Benefits of Regulation

1) Market System (competition lowers prices) 2) Take some of the burdens off the 3 branches of gov't 3) Can handle politically sensitive issues ---i.e. Approval of prescription drugs, Defense policy, Aid to foreign nations, SS, Health Care, Employment discrimination 4) Leads to specialization by hiring experts in their fields

What are the 3 major events that have determined the division of power struggle between the National and State gov'ts from the beginning of the country until the 1980s?

1) McCulloch v. Maryland (Necessary & Proper) 2) American Civil War (fought for states rights) 3) Civil Rights Movement (again states rights)

Defense for Trespass to Personal Property

1) Meddling was warranted in good faith 2) Artisan's Lieu

Elements to a Contract

1) Mutual agreement 2) Consideration (payment term) 3) Capacity (legal wherewithal to enter contract) ----NOT children, drunken, or crazy people 4) Legality 5) Genuine and real consent to contract (Not forced to do it) 6) Some contracts must be in writing

Organized Securities Markets

1) NY Stock Exchange 2) American Stock Exchange 3) NASDAQ

Exceptions to Minors Contractual Capacity

1) Necessities (up to reasonable amt.), 2) Military enlistment, 3) Marriage contracts, 4) Statute: --Insurance --Banking --Public Transportation --Student Loans

Defense to Conversion

1) Necessity 2) Owner does not in fact own it or does not have right to possess it that is superior to the holder

Categories of Products Liability

1) Negligence 2) Warranties 3)

What are the major forms of Alternate Dispute Resolution and the differences between them?

1) Negotiation: Informal, done w/ or w/o attorneys (90% of civil cases) 2) Mediation: Uses 3rd party to assist settlement 3) Arbitration: Arbitrator makes binding decision w/ no appeal

FDA Reports can lead to:

1) No action (company wins) 2) Objectionable conditions found --> voluntary action by company 3) Serious objectionable conditions found --> Warning letter ---15 days to respond to allegations

Right to Strike

1) Normally prohibited during the period of the contract 2) Once contract expires, unions can go on strike over mandatory bargaining issues

What are the steps to an appeal?

1) Notice of Appeal 2) Designation of Record 3) Brief prepared by Appellant 4) Brief prepared by Appellee 5) Oral Argument (~30 mins) 6) Decision by Appellate Court (sets precedent)

Types of Objective Impossibility

1) One of the parties to a personal service contract dies prior to performance ---Death does NOT terminate a contract UNLESS it is a personal contract (i.e. contract based on talent - football contract) 2) Specific Subject matter of the contract is destroyed, AND it cannot be replaced (i.e. land) 3) Change in the law renders performance illegal 4) Performance becomes commercially impractical (RARE) ---When performing becomes MASSIVELY more expensive/difficult than could have been anticipated by a Reasonable person ---NOT justified if there is foreseeability

What are the major steps of a trial?

1) Opening Statements 2) Witnesses called 3) Closing arguments 4) Courts Charge/Instructions (for jurors, explanation of the law) 5) Jury deliberates 6) Verdict

Defenses to a Hostile Takeover

1) Pacman Defense (the 2 companies chase each other in circles) 2) Poison Pill Defense (i.e. HP used this) 3) Scorched Earth Defense (sell off everything the company owns) 4) White Knight Defense (find a company that will leave your company in tact rather than breaking it up to buy you out)

When do you have potential liability for your partner's actions in LLP?

1) Partner directly involved in wrongful activity 2) Partner had notice or knowledge of that activity and failed to take reasonable steps to correct

Contract Functions

1) Performance 2) Risk Allocation

Why do people or businesses enter into contracts?

1) Performance 2) Risk Allocation

Defense to Negligence Suits

1) Plaintiff has burden of proof 2) Defendant has to prove affirmative defense ---Assumption of risk ---Contributory/Comparative Negligence ---Intervening causation

Major Areas of Concern for Clean Water Act

1) Point sources of water pollution 2) Thermal pollution 3) Wetlands 4) Oceans 5) Oil spills

Consumer Product Safety Commission Power

1) Potential poisons 2) Hazardous toys 3) Flammable fabrics

What is the jurisdiction of the Consumer Product Safety Commission?

1) Potential poisons 2) Hazardous toys 3) Flammable fabrics --children's toys, baby products, furniture, household chemicals

Types of Enforcement Power

1) Power to force businesses to comply with its rules and regulations 2) Specified by enabling statute

Fraud does NOT apply to:

1) Predictions 2) Statements of Opinion

Non-offers

1) Preliminary Negotiations 2) Advertisements 3) Auctions ----Exception: absolute auction/ auction without recourse

Clayton Violation Areas

1) Price Discrimination 2) Exclusionary Practices/Dealing 3) Tying Arrangements 4) Mergers 5) Interlocking Directorates

What are the different types of authorities in agency relationships?

1) Principal 2) Agent (rep of Principal) 3) Third Party

Important Factors for Secured Creditor to maintain

1) Priority 2) Have enough collateral to cover debt and expenses -----After Acquired Property

Strict Liability Defenses:

1) Product Abuse (abuse or misuse of product) 2) Assumption of Risk 3) Comparative Negligence 4) Expiration of statute of limitations (usually 2 years)

Damages for misappropriation

1) Profits that the pirated material made 2) Injunction 3) Possible criminal sanctions

What has to be in the Registration Statement?

1) Prospectus (take a look at our company) --Must be INDEPENDENTLY prepared by an acct. company 2) Detail info (terms of security, audited finan. stmnts., bio of mgmt team) 3) Discussions of Financial interest(s) of issuer (stock holdings & stock options) 4) Conflicts of interest 5) Enumeration of potential risks of investors 6) Status of any potential lawsuits

What is the 4 prong test of the Fair Use Doctrine?

1) Purpose & character of fair use 2) Nature of copyrighted work 3) Percentage of total used 4) Effect on value of the copyrighted work

OSHA Inspections occur:

1) Randomly 2) Workers report violations 3) Employer's self-reporting after acccidents

9) The Labor Law that outlawed Yellow Dog Contracts was: A) Norris LaGuardia B) Wagner C) National Labor Relations Act D) Taft-Hartley E) B and C

When does an LLC dissolve?

1) Reaches the end of a fixed period 2) Occurrence of specified events in Operating Agreement 3) Action to dissolve by members 4) No members remain 5) Entry of a decree of judicial dissolution

Exempt Property

1) Real Property 2) Personal Property

FDA Enforcements

1) Recalls 2) Injunction 3) Seizure of subject product 4) Fines 5) Consent decree 6) Criminal investigations

The Enabling Statute [Agency Birth Certificate] sets the agencies':

1) Regulatory mission 2) Organizational structure 3) Enforcement powers --Congress has oversight by controlling the money

Types of Non-home loan penalties

1) Reimbursement of any amount overcharged and any billing errors 2) Actual damages 3) Twice the finance charge 4) Attorney's fees

1) Reproduce the copyrighted work 2) Create derivative works based on it 3) To distribute copies 4) Perform the work 5) Display the work in public

Types of Investigatory Power

1) Requiring Business to self report and monitor ---Any violations of abnormalities (i.e. EPA requires) ---Not against the 5th or 8th amendment b/c this is Civil ---But can NOT share this info. (i.e. with the IRS) 2) Hold Hearings ---i.e. to see if drugs are hurting people 3) Subpoena Power 4) Physical inspection of businesses ---May or may not need warrant (Administrative Warrant - easy to get, not probable cause)

What are the different types of enforcement tools available in Regulatory Law?

1) Requiring Business to self report and monitor 2) Hold Hearings 3) Subpoena Power 4) Physical inspection of businesses

Discharge by Agreement

1) Rescission 2) Novation 3) Accord and Satisfaction ---Only works in UNliquidated contracts

What are the equitable remedies to breach of contract?

1) Rescission & Restitution (action to undo or cancel contract & return parties to position prior to contract) 2) Reformation (Rewrite the contact to express true agreement between parties) 3) Specific Performance (Court orders breaching party to honor contract)

How is a contract discharged by agreement of the parties? (Compare to ways to terminate an offer by the parties, similarities, and differences)

1) Rescission: Parties form new contract for the purpose of discharging original contract 2) Novation: substitutes a new party for one of the original parties (sublease) 3) Accord & Satisfaction: Parties agree to accept performance that is different from the original

Rights of Shareholders

1) Right to vote (1 per share) to elect Board of Directors & [dis]approve fundamental corporate changes 2) Proxy Solicitation

What are the rights of a shareholder?

1) Right to vote per share to elect Board & approve fundamental changes 2) Proxy solicitation --Limited Liability

12) What rights are employees given under Wagner?

1) Self-organize to form, join or assist labor organizations 2) Collective bargaining through representatives that they chose 3) Engage in other concerted activities for Collective bargaining, other mutual aid, or Protection

Exceptions to Equal Pay Act

1) Seniority system (longer with company, higher pay) 2) Merit System (wages based or quantity or quality of production) 3) A differential based on any factor other than sex

EEOC protection against Sex Discrimination:

1) Sexual Harassment 2) Pregnancy --Does NOT apply to homosexuals or transsexuals, or sexual orientation

Environmental Protection Interest Groups

1) Sierra Club 2) Green Peace

2 Major Reasons Product Liability changed

1) Spanish-American War ---More American soldiers were dying from food than from the war 2) "The Jungle" by Upton Sinclaire ---Gross revelation of meat conditions

Disadvantages of LLC

1) State law --> can vary from state to state 2) Some types of business can NOT be LLCs under state law and IRS Rules ( 3) Legal uncertainties and lack of case law b/c of newness --Most people feel the advantages outweigh the disadvantages

Why did corporations grow in importance beginning in the 19th Century?

1) Steam Engines 2) Railroads

Technological changes that led to corporate domination late 1800s

1) Steam engines (by James Watt) -- power source 2) Railroads -- easy & cheap mass transportation

Exceptions to Parol Evidence Rule:

1) Subsequent modification of written contract 2) Oral evidence to prove contract was void or voidable 3) Ambiguous or incomplete contracts 4) Prove a condition

3 Types of Rules within Legislative Power

1) Substantive Rules (Equal weight as Congressional Statutes) 2) Procedural Rules (Umbrella law, gives a great deal of discretion) 3) Regulations, aka "Regs" (i.e. Internal Services Regs)

What are the two protections for freedom of speech in the 1st amendment? How do they apply to businesses?

1) Symbolic Speech 2) Political Speech -Public employees' speech not as protected -Commercial speech (i.e. Advertising) not as protected

State Action Exemptions

1) TABC liquor licenses 2) Logging Rights 3) Firearm dealerships

How do you or the law terminate an offer

1) Termination by person 2) Termination by law

Ways to terminate an OFFER

1) Termination by the person -Revocation -Rejection -Counteroffer -Lapse of Time 2) Termination by Law -Intervening Illegality -Subject matter of the court is destroyed -Offeror or Offeree becomes insane, dies, etc. [no Capacity]

Vertical Market Division

1) Territorial Restraints 2) Customer Restrictions --Rule of Reason b/c of Location Clause

Objective factors of Contracts

1) The conduct of the party 2) The words spoken or written by the party 3) The circumstances surrounding the transactions

Comparable Worth

Argument that jobs should be evaluated and those evaluated to be comparable, be paid the same --NOT adopted in the US

Element necessary to establish Liability

1) There was a sale 2) Product was defective and defect was substantial factor in injuries 3) Unreasonable danger 4) Product was defective when it left manufacturer's control

Tactics utilized in Enforcement Power

1) Threats of public exposure (informal enforcement) ---i.e. EPA showing business that it exceeded pollution levels and feared losing goodwill from customers 2) Fines ---Alleged violator can appeal ---Court action can be taken if alleged violator does not comply, possibly classified as criminal offense 3) Court Action

Legal Monopoly

1) Through legal and fair means a company becomes the sole provider of a given good through a superior product and does not subvert the benefits of market competition AND 2) Refrains from maintaining its status through anti-competitive means and allows competitors to readily enter the market 3) Pose no real harm to society --Courts: did the business posses "intent to monopolize"?

A wide range of choices allows customers:

1) To reward firms that closely matches their individual tastes 2) Those individual choices then channel resources to the most efficient & most responsive firms 3) Creates a dynamic reward system promoting Entrepreneurship, Efficiency, and Risk taking 4) Creates wealth --Competitive markets are therefore the best for the economy

2 Tort Theories commonly used to enforce pollution control

1) Trespass to Land Theory 2) Nuisance

Defenses to Trespass

1) Trespasser enters to assist someone in danger even if that person is a trespasser 2) Trespasser enters to protect property --NOT: improve the property

3 types of Exclusionary Practices

1) Tying arrangements of tie-in sales 2) Exclusive-dealing contracts 3) Boycotts

What are the requirements of an acceptance

1) Unconditional 2) Unequivocal 3) Legally communicated

Requirements for Acceptance of an offer

1) Unconditional (exact, mirror image rule) 2) Unequivocal (words or conduct must be definite) 3) Legally Communicated (means specified or reasonable) --Unilateral Contracts -- performance is acceptance --Bilateral Contracts --

Issuer who makes a material misrepresentation is liable, as are:

1) Underwriters 2) Corporate directors 3) Corporate officer who signed the document 4) Outside experts (Accts, lawyers, engineers, geologists) --Issuers subject to fine up to $10,000 per violation and/or prison up to 5 years per violation

SEC role in GAAP

1) Uniform rules 2) All U.S. companies must use GAAP 3) Allows people to compare companies by same standards ---Can have a negative impact on companies involved in international business (foreign companies do NOT have to follow GAAP)

Points of Invasion of Privacy

1) Unwarranted does NOT mean unwanted 2) Public records render information public 3) Public figures lose much, but not all of their right of privacy

Types of Invasion of Privacy

1) Use of a person's name or picture without permission 2) Intrusion into the person's solitude 3) Public disclosure about a person which is offensive and objectionable 4) Publication of information which places a person in a false light

Defenses to Price Discrimination

1) Volume Discounts (i.e. Walmart) -----Most common & controversial defense -----Big businesses have this advantage over little businesses -----Lawsuits pending trying to change this so EVERYONE gets the volume discounts, not just big businesses like Walmart 2) Cost Justification (i.e. differences in transportation costs) 3) Changing Conditions -----Deterioration of perishable goods (i.e. bananas) -----Obsolescence of seasonal goods -----Court ordered sale/Judicial sale 4) Meeting Competition -----Seller can meet, but not beat, competitor's price in good faith

Mandatory subjects of Collective Bargaining

1) Wages 2) Hours 3) Other Conditions of Employment

20) What are mandatory topics of Good Faith Bargaining?

1) Wages 2) Hours 3) Other conditions of employment

NLRA is now both:

1) Wagner & 2) Taft-Hartley

15) What are both names of each of the 4 major labor laws?

1. Norris LaGuardia/ Anti-Injunction Act 2. Wagner / National Labor Relations Act 3. Taft-Hartley / Labor-Management Relations / Slave Labor Act 4. Landrum-Griffin Act

State's Rights

10th Amendment: Any powers not expressly delegated to the Federal gov't are reserved to the States/the people -"Reserved Powers Clause"

Appalachian Coal Co. case

137 small family-owned coal mines throughout Appalachian Mt. Regions (poor region) that heavily depends on coal for home and business --Fixed prices to get through the Great Depression --Appointed Appalachian Co. as the Price Leader ----> Still Horizontal Pricing --> Per Se Illegal --Court asked why they did it --> Made the case Rule of Reason --Not one single consumer did not have the ability to buy coal and not one employee lost their job --Court Dismissed the case under Rule of Reason

Equal Protection

14th Amendment

Norris-La Guardia Act of 1932

1st Labor Law --Aka "Anti-injunction Act" --Warning to both sides to stop the violence --Doesn't legalize unions, but makes it impossible to make them illegal 1) Outlawed Yellow Dog Contracts 2) Made it much more difficult for employers to obtain injunction forcing their striking workers back to work 3) Did NOT directly sanction union nor their activities

Mergers

2 or more firms coming together to form a new firm

Partnership

2 or more persons --No formalities necessary --SHOULD have a detailed written partnership agreement --Con: people working together --> disagreements --Joint & Several Liability (partners responsible for each other)

In Texas, the statute of limitations in nuisance is __ years

2 years

Cause in Fact

Actual Cause, aka "But for" Test --Established by evidence showing that the complained-of-act is the cause of the event that caused the injury --The injury would not occurred but for the conduct of the wrongdoer --i.e. Dominoes - would not have fallen if first one had not been knocked over

Undisclosed Principal

3rd party does NOT know Principal

Disclosed Principal

3rd party knows of Agency and who Principal is -ONLY Principal has Contractual Liability

Partially-disclosed Principal

3rd party knows of Agency, but NOT who Principal is -ONLY Principal has Contractual Liability -Agent is Liable to Principal for disobedience

Statute of limitations on debt

4 years --Starts over if you pay partial payment

How many Federal District Court Districts are there in Texas?

4: Northern, Southern, Eastern, Western -Brazos is in the Southern District w/ Houston

Unreasonable Search & Seizure

4th Amendment

What is the makeup of the U.S. Supreme Court?

8 associate justices, 1 chief justice

If a judge feels that it is within his/her discretion how to interpret a statute, however, they feel is correct, without regard to congressional intent, that judge is utilizing: A) Judicial activism B) Judicial passivism C) Precedent D) Judicial Review E) A, C, and D

Jack and Jill enter into a contract. If both perform all of the requirements of the contract satisfactorily, the contract is: A) Discharged by complete performance B) Discharged by substantial performance C) A material breach of contract D) Only discharged as to Jill E) Only discharged as to Jack

Lee takes a picture of the sunset with a windmill in front of the sun. The windmill is not associated with any product or company. He decides that he wants to protect the pic as his Intellectual Property. His best way to do so would by A) Copyright B) Patent C) Trademark D) Service mark E) C and D

MacPhearson v. Buick Motor Co established which type of products liability? A) Negligence theory B) Expressed warranty theory C) Implied warranty theory D) Strict liability E) Market share liability

Writ of Attachment

A court order that allows seizure of property IF 1) Debtor is indebted to creditor 2) Debtor will probably dispose of the property to prevent the disposal of property

Equitable Remedy

A court order to do, or not do, something -i.e. Injunction -Generally only available where the monetary (legal) damage is too late or does no good -Try to avoid the harm

Injunction

A court order to prevent or require action of one party until the dispute is resolved -An example of a action in equity or equitable remedy

Protective Order

A court order, direction, decree, or command to protect a person from further harassment, Service of Process, or discovery -Can limit the time and place where a deposition can be taken, restrict the inspection of documents in the possession of a party, or regulate or modify the enforcement of a judgment

What are equitable remedies

A court ordered action that directs parties to do or not do something -i.e. Injunction

Patents

A grant from the federal gov't to the applicant to have the right to use, sell, or allow other to use invention --NOT automatic like copyright

Council of Institutional Investors (CII)

A group of institutional investors got together to promote accountability of corporate executives --Monitors the governance of publicly-traded corporations to be sure it is set up to promote shareholder interest -- --i.e. CII has lobbied against corporations adopting takeover defenses such as "poison pills" without the formal approval of shareholders

Litigation

A lawsuit filed in order to have issues resolved by the courts if disputes cannot be resolved through mutual agreement and compromise. Includes: 1) Pleadings 2) Discovery 3) Pre-Trial 4) Trial 5) Appeal

Abuse of Process

A party maliciously misuses or misapplies regularly issued civil or criminal process

Proxy Solicitation

A written authorization by the shareholder on form typically provided by the corporation, designating an agent to vote of behalf of the shareholder at the shareholders' meeting --If shareholder cannot/ does not want to go to annual meetings, can give proxy to someone else to vote their shares

11) Who was the first President to get the opportunity to enforce Landrum-Griffin? A) Kennedy B) Johnson C) Nixon D) FDR E) Reagan

2) What one aspect of employment does the Equal Pay Act deal with? A) Compensation B) Hiring C) Firing D) A and C E) All of the above

4) European Unions tend to follow which theory? A) Social unionism B) Business unionism C) Communist unionism D) Democratic unionism E) Fascist unionism

16) Spencer is a single adult with no children, his personal property maximum of exempt property in Texas is A) $15,000 worth of exempt personal property B) $30,000 worth of exempt personal property C) $60,000 worth of exempt personal property D) $90,000 worth of exempt personal property E) $120,000 worth of exempt personal property

A) $15,000 worth of exempt personal property

The free Exercise Clause is found in what amendment(s)? A) 1st B) 4th C) 5th D) 14th E) C and D

A) 1st

13) When attempting to purchase what % of a company's stock must you notify the SEC of your proposal and what is it called?

A) 5%, tender offer

Which of the following is true about the Great Compromise of the Constitutional Convention? A) Also called the Connecticut Compromise B) Also called the 3/5 Compromise C) Created the Judicial branch of our gov't D) Prevented the Southern States from importing slaves in 20 years E) B and D

A) Aka Connecticut Compromise

7) The statute that creates most regulatory agencies is called:

A) An enabling statute

***A concurrent opinion: A) Is an opinion agreeing with the majority opinion result but for different reasons B) Established precedent C) Is an opinion disagreeing with the majority D) Is an opinion by most of the judges/justices E) B and D

A) An opinion agreeing with the majority opinion result but for different reasons

15) Which of the following is a Possessory Lien? A) Artisan's Lien B) Landlord's Lien C) Mechanic's and Materialman's Lien D) Judgment Lien E) All of the above

A) Artisan's Lien

12) Liquidation is handled under what section of the Bankruptcy Code? A) Chapter 7 B) Chapter 9 C) Chapter 11 D) Chapter 13 E) Chapter 15

A) Chapter 7

16) Which of the following are duties of the CPSC?

A) Develop and issue consumer product safety standards B) Issue labeling standards C) Issue minimum performance criteria for products --NOT Imprison wrongdoers

What case ruled that if commerce involved more than one state, then it was interstate commerce? A) Gibbons v. Ogden B) NLRB v. Jones & Laughlin Steel Corp C) Marbury v. Madison D) McCulloch v. Maryland E) Plessy v. Ferguson

A) Gibbons v. Ogden

18) There are at least 3 eras of federal regulatory agencies. The FDA was created during which one?

A) Historical

If a Florida manufacturer of widgets that only sells its widgets in Florida merges with a NC manufacturer of the same widgets who only sells his widgets in NC, this would be a: A) Horizontal geographic extension merger B) Vertical geographic extension merger C) Horizontal product extension merger D) Vertical Product market extension merger E) A and C

A) Horizontal geographic extension merger

The Sherman Act proved to be ineffective due to: A) Interpretation by the federal courts B) Interpretation by the state courts C) Manner in which it was written by Congress D) Way in which it was enforced by the President E) Way in which it was enforced by the Dept. of Justice

A) Interpretation by the federal courts

The first case to show the power of the Necessary & Proper Clause is: A) McCulloch v. Maryland B) Marbury v. Madison C) Gibbons v. Ogden D) Smith v. Allwright E) None

A) McCulloch v. Maryland

***What is the only Texas Court that is normally appointed? A) Municipal Court B) Justice of the Peace C) Small Claims Court D) County Court E) County Court at Law

A) Municipal Court

20) What are the standards for the country set by the EPA in air pollution? A) NAAQS B) RACT C) BCAT D) SIPS E) ACQRS

A) NAAQS

19) An example of a dependent agency is/are:

A) OSHA --Not FTC, ICC, or CAB

The relevant market is the: A) Product market and the geographic market B) Product market only C) Geographic market only D) Market power E) Market share

A) Product market and the geographic market

The Anti-Trust Act(s) that was/were broad and punitive rather than specific amd preventative is: A) Sherman B) Clayton C) FTC D) B and C E) All of the above

A) Sherman

1) What regulates the meat industry?

A) U.S. Department of Agriculture

What duties are owed by the principal to the agent? Agent to the Principal?

AGENT TO PRINCIPAL: --Fiduciary Duty: must subordinate self interests to those of Principal --Duty of Loyalty --Duty to Obedience & Performance --Duty of Reasonable Care --Duty to Account (accurate records) --Duty to Notify PRINCIPAL TO AGENT: --Duty to Cooperate --Duty to Compensate --Duty to Reimburse --Safe Work Environment --Duty to Indemnify for Losses

Nonattainment Areas

AQCRs not in compliance with SIP

Contractual Capacity

Ability of contracting party to understand he's entering into a contract and to understand general nature of the contract

Market Power

Ability of one or more firms profitably to maintain prices above competitive levels for a significant period of time

Labor Unions

Able to organize and conduct collective bargaining without fear of being accused of violating antitrust laws --To qualify for exemption, labor unions must act solely in the interest of their membership and cannot include any non-labor affiliates --Regulated by the National Labor Relations Act

***Mailbox Rule

Acceptance is good when dispatched -Exception: if the offeree accepts improperly -- then not valid until received by offeror

What is the Mailbox Rule and how does it operate?

Acceptance is good when dispatched EXCEPT if the offeree accepts improperly

Gilbert v. Petliette

Acceptance must be identical with the offer in order to make a binding contract

Tender Offer

Acquiring company offers more than face value for stock, attempting to purchase a controlling interest in the target company

McLain v. Real Estate Board of New Orleans, Inc.

Activity that is regulated can even be purely local if the activity "substantially affects interstate commerce"

Palsgraf v. Long Island Railroad Co.

Added 2nd type of Causation -- Proximate Cause --Injured woman lost b/c the railroad employees did not know of the harm that would result from helping the man with fireworks in his bag --Texas: defendant must have known or should have known harm would result --Cali: defendant must be a substantial factor in bringing about the harm

Adulteration

Adding something to products to diminish the quality

Duty of Loyalty

Addresses the conflict of interest that may arise from time to time in the performance of the manager's duties

What is the difference between just being insane and being adjudicated insane? What impact does that differentiation have on contract liability?

Adjudicated means the court has officially ruled the person insane --All contracts void for adjudicated persons, and voidable for un-adjudicated persons (BUT still have to pay restitution)

Public Nuisance v. Private

Affects public at large (vs. only one or a few people)

Government in the Sunshine Act (1976)

Agencies headed by 2+ Presidentially-appointed people must hold every portion of every meeting in the open --Only applies to official business, NOT day-to-day activities of personnel --Agency can close meeting by majority vote, subject to review by US District Court

What is an enabling statute? What types of powers are specified in it? In what ways is an enabling statute binding on the behavior of an administrative agency?

Agency Birth Certificate that sets the agency's: 1) Regulatory mission 2) Organizational structure 3) Enforcement powers

Agent's Duty to Obedience and Performance

Agent must Reasonably follow directions --Agent required to perform the services specified for the time period and in the manner specified --CAN disobey in emergency, violation of law or ethics

Agent's Duty of Reasonable Care

Agent must act in non-negligent manner --Must exercise special skills he possesses by Reasonable standard

Agent's Duty to Account

Agent must keep accurate records of all money or property received during agency within reasonable time, or as specified --Be able to trace money & property --Should NOT co-mingle funds

Agent's Duty of Loyalty

Agent must place Principal's interests above their own --Agent canNOT represent conflicting parties or be self-dealing

Fiduciary Duty on Agent

Agent must subordinate his self-interests to those of Principal --HIGHEST Duty of Law --Applies in ALL Agent relationships

Board of Directors

Agents to the Shareholders 1) Oversee running of corporation 2) Shape overall strategy 3) Employ officers to manage the daily affairs of corp.

Accord

Agreement between parties for different performance than required in contract

AQCRs

Air Quality Control Regions

Katzenbach v. McClung

Aka "Ollie's BBQ" -Served Af. Am. at take-out window only -Ruled against Southern business -Defines the definition of interstate commerce and illustrates the power of the Commerce Clause to the business community - all businesses are involved in interstate commerce and can therefore be regulated by the Federal Gov't

Sunday Laws

Aka Blue Laws -Required some businesses to be closed either partially or totally on Sunday -Constitutional on non-religious reasons for a uniform day of rest and recreation (Oregon v. Smith)

Judgment n.o.v.

Aka Judgment not withstanding the verdict -The judge reverses the jury's verdict if he/she determines the moving party is entitled to judgment as a matter of law -OR may grant a new trial if the verdict was against the great weight of the evidence -RARE in TX

Blue Laws

Aka Sunday Laws -Required some businesses to be closed either partially or totally on Sunday -Constitutional on non-religious reasons for a uniform day of rest and recreation (Oregon v. Smith)

Metropolitan Life Insurance Co. v. Ward

Alabama tax law that taxed non-resident corporation more than local companies -Court held distinction was not a legitimate governmental purpose

What Principal-Agent problems arise in Corporate Governance?

Alignment of Financial Interests

Valid

All elements are present -Enforceable

Immigration Reform and Control Act of 1986 [Simpson-Mazzoli]

All employees must present 1) Identity Proof & 2) Authorization to work --Puts the burden on the employer for hiring illegal workers [criminal penalties] --Provided amnesty to 3 million illegal aliens

Family and Medical Leave Act of 1993 (FMLA)

Allows employees to take up to 12 weeks in a 12 month pd of UNPAID leave --Must have been w/company for at least 12 months & worked 1,250 hours --All Public Employees LIMITED TO: 1) Serious health condition 2) Childbirth, adoption, foster-care 3) Seriously ill child, parent, spouse, or employee (NOT siblings, domestic partners, extended family, or friends) --Does NOT apply to Management

Rule of Reason (pg 230)

Allows some antitrust violations as long as reasonable --Much more flexible standard w/ many factors --"There is no other way"

Robinson-Patman Act

Amends Clayton to restrict Price Discrimination --Original Intent: protect small stores from the large chain stores --Majority of cases are private

AFL

American Federation of Labor Focused on: --Increased benefits --Better wages --"Business unionism"

ASCAP

American Society of Composer, Authors, and Publishers

Legal Detriment

An act, promise to act, or refraining from an act, which not legally obligated to do

What is an illusory promise and how does it affect consideration?

An expression cloaked in promissory terms that does not actually involve a commitment by the promisor --No real commitment or contract --Doctrine of Consideration: requires that promises of both parties to Bilateral contract be supported by consideration --If one of the promises in a contract is illusory, nor does not have to be done, the entire contract fails

**Agency Law

An extension of Contract Law -Principal gets Agent to deal with 3rd parties -Agent is the Representative of the Principal

What is the difference in a contract that is for an illegal purpose and when a contract just has an illegal part to the otherwise, valid contract? What makes a contract illegal?

An illegal contract is void, that is, it was never legal --A partially illegal contract is partially-voidable --Illegal if violates state or federal law [or public policy]

Executive Order

An independent method to create law by the President

Asbestosis

An irreversible thickening of the lung linings and eventually suffocates the victim

Nuisance

An unreasonable interference with one's peaceful enjoyment or use of land --More common --Sight, sound, odor, smoke, vibrations, building height Damages: --Past loss of use and enjoyment of land --Permanent Injunction (public nuisances only) --Permanent damages - one time compensation for present & future damages

APR

Annual Percentage Rate - Effective annual cost of the interest being charged to the Debtor stated in a yearly percentage including any fees or costs of the loan

There are 2 major functions of the legal system. When you are sued in Court this is an example of what type of major function of the legal system? A) Governmental Regulation B) Dispute resolution C) Civil Law D) Criminal Law E) All of the above

To whom and when does self-incrimination apply?

Applies only to individuals, NOT corporations, -In CRIMINAL cases, not civil -Does not apply if confession is made voluntarily

Omnibus Transportation Employee Testing Act

Applies to Certain Federal employees: 1) Drug Agents 2) Employers who operate public trans --Aircraft (FAA) --Subway, buses, etc.

Celler-Kefauver (1950)

Applies to virtually all methods of external expansion --Key factor is to determine Concentration of Market Power --Section 7: a person or business cannot hold stock or assets in another business where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially lessen competition

Articles of Incorporation & bylaws

Birth certificate of a corporation --Can be amended/deleted --Bylaws created by Board of Directors

Trade Names

Apply to a part or all of a business name --Rep. the good will and good name of the business --Specialized form of Trademark --Can NOT be registered under Lanham (unless name of product) --Stops business from hiding behind its Trade Name

Ratification

Approval of the Constitution into the Supreme Law of the land -9 states (3/4) had to ratify the Constitution for it to become official

Arbitration

Arbitration must be agreed upon by both sides Beforehand (CANNOT back out after agreed upon) -Arbitrator makes binding decision (method for choosing put into contract) -Often forced or mandated over litigation -Usually no appeal -Advantage: Generally private -Can set aside Arbitrator's decision IF: ---Illegal or mandates a party violate the law ---Based on corruption, fraud, or undue influence (bribery) ---Exceed's Arbitrator's authority -i.e. Baseball contracts include Arbitration requirement

Bilateral Treaties

Both parties are promisors

Restrain of trade

Any agreement between 2 or more parties that substantially reduces the competition --i.e. 2 firms contracting to fix prices on their products to eliminate competition

Suspect Classification

Any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination. -These classes receive closer scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law, regulation, or other government action.

What have been the major cases defining interstate commerce? How was/is it defined?

Any commerce involving two or more states -Gibbons v. Odgen: [commerce clause, interstate v. intrastate) -NLRB v. Jones & Laughlin Steel Corp. [Fed. Gov't can interfere if significant impact on interstate] -Wickard v. Filburn [Can interfere in seemingly trivial matters if aggregate national effect is significant] -McLain v. Real Estate Board of New Orleans [Can interfere in local activity if affects interstate commerce] -Heart of Atlanta Motel v. U.S. [] -Katzenbach v. McClung (Ollie's BBQ) []

Nuisance

Any conduct which [Unreasonably, Non-contractual] interferes with enjoyment or use of land 1) Public -- effects public at large 2) Private -- affects one of a few people

Labor Organization

Any organization of any kind, or any agency or employee rep. committee or plan, in which employees participate and which exists for the purpose, in whole or in part, or dealing with employer concerning 1) Grievances 2) Labor disputes 3) Wages 4) Rates of pay 5) Hours of employment 6) Conditions of work

Personal Property

Any other property 1) Tangible 2) Intangible (i.e. lease)

Any time a major event occurs, it must be filed with the SEC

Trespass to Real Property/ Trespass to Land/ Trespass

Any unauthorized physical intrusion or entry upon land where someone else has a superior right to the property -No harm to the land is necessary -Owner must implicitly or expressly establish that person is a trespasser -MUST remove the trespasser, or else they become an invitee and you become liable for them -Texas Penal code for "No Trespassing" signs

Trademark

Any word, name, symbol, or design, or any combination thereof, used in combination to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods

Trade Secrets

Anything the business wants to keep secret from their competitors (must be original & secrete): 1) Formulas 2) Customer lists 3) Price lists 4) Research 5) Plans for future development 6) Marketing techniques 7) Any info to give company an edge

What are the options of a party who loses a trial after the trial (post trial)?

Appeal to an appellate court

Remand

Appellate Court's decision to send the case to the lower court for further proceedings on a matter that the court felt should have been addressed but was not

Lewis Turner v. Linda Turner

Appellate court overturned Lewis' award for intentional infliction of emotional distress b/c another Tort (Assault) existed in the case --The highest court in TX is discouraging the use of this tort if it can be covered by another tort

Fair Packaging and Labeling Act (1966)

Applied to retail products sold in interstate commerce --Labeling had to be honest and informative --Ineffective: -----No consistent serving size standard -----Confusion on caloric, fat, protein, and carb amounts

Artisan's Lien

Artisan: someone who provides services or labor to the debtor on the debtor's personal property --Must be in the Possession of the lienholder - cannot let it go and then go take it back --i.e. Cleaners, shoe repair, storage

Separate But Equal

As long as the races were treated equally, separation of races was constitutional

What is one of the only Absolute Liability cases?

Asbestos

What is to the point of Absolute Liability?

Asbestos --Explosion in lawsuits bankrupted many asbestos manufacturers --One of the longest and costliest running torts in history

Defenses to Negligence

Assumption of Risk: 1) Contributory Negligence 2) Comparative Negligence 3) Superseding Clause

Miranda v. Arizona

Attempts to prevent coerced confessions -Police must read "Miranda Warnings" 1) Remain silent 2) Anything you say can and will be used against you 3) An attorney 4) If you cannot afford and attorney, one will be appointed

19) How do the workers of a business choose to become union?

Authorization cards (at least 30%)

Safe Drinking Water Act of 1974

Authorizes EPA to establish national drinking water standards --Forbids dumping of wastes into wells used for drinking --Operators of public drinking water systems must use best available technology --Requires provider of water to send yearly report to customers

Per Se Rule

Automatically held to be illegal --Cause is irrelevant, no defenses --Found in antitrust areas thought to be inherently anti-competitive --Only issue remaining is the type and amount of damages

Primary source of air pollution

Automobiles --Asbestos --Mercury --Benzene

Worker's Lien

Available to garages - mechanics --Special type of Artisan's Lien where the Mechanic CAN repossess the property

Professional Corporations (PC)

Available to professionals (attorneys, doctors, dentists, accountants) --ADVANTAGE: Gives Limited Liability to shareholders (EXCEPT for malpractice) for: 1) Tortuous acts 2) Contract liability

A contract where one party has performed completely, but the other party has not can best be described as: A) Executed contract B) Executory contract C) Partially executory contract D) Unilateral contract E) Bilateral contract

Austin is following Peter's instruction in an agency relationship. Peter has given Austin the specific instructions to drive the car the most direct route using interstate highways when possible. Austin is driving from Houston to LA. When Austin arrives in El Paso the interstate is closed due to bad weather so he takes an alternate route. Austin is using: A) Expressed Power B) Implied Power C) Apparent Power D) Actual Power E) Agreed Power

During Boot Line when A&M is playing tu on national TV and the game is covered by ABC. Puck the bad Ag drops his pants and shows his tattoos of "Beat to" on his left cheek and "12 Man Rocks" on his right cheek. He is caught on national TV during the half time activities part of the ABC coverage with his pants down. The following week Puck is expelled from TAMU and IBM calls him and tells him that the job offer they made is no longer a realistic option. Both were done due to the TV incident. Puck sues ABC for Invasion of Privacy. What will be the result of Puck's lawsuit? A) Puck will lose due to being mentally imbalanced B) Puck will lose b/c what he did was in public C) Puck will win b/c ABC has a lot of money D) Puck will win due to ABC invading his privacy E) There is insufficient information to make an informed decision

Howard and his gf decide to drive through a crowd in the nude on his motorcycle to attend the "streak in" outside the Academic Bldg. The motorcycle dies and he has to jump start the motorcycle while she stands next to him trying to describe what to cover up. The student newspaper takes a picture and publishes it in the next edition of the paper and names of Howard and his gf. If Howard and his gf sue, what is the probable Tort and result? A) Invasion of Privacy and they would win B) Invasion of Privacy but they would lose C) Defamation and they would win D) Defamation and they would lose E) B and D

If a judge feels that it is within his/her discretion how to interpret a statute, but only, according to congressional intent, that judge is utilizing: A) Judicial activism B) Judicial passivism C) Precedent D) Judicial Review E) A, C, and D

If you agree to a contract and under the terms of the contract you must begin performance immediately and perform under the contact until a stated event in the contact occurs, you have entered into what type of contract? A) Unconditional Contract B) Condition Subsequent Contract C) Condition Concurrent Contract D) Condition Precedent Contract E) An illegal contract

If you are dealing with a totally disclosed agency in a contractual transaction where the Agent acted within his/her scope of the agency, who along with the 3rd party liable under the subsequent contract? A) Agent B) Principal C) Agent and Principal D) Agent and Principal but the Principal would have to indemnify the Agent for his/her loss E) __ and D

Mary tries to register the name of her product, "Twin Cities Pretzels" and is turned down by the federal gov't. Which of the following is true: A) Mary must seek protection under trade name law B) Mary can utilize state law for trademark protection C) Mary can copyright her name D) A and C E) A, B, and C

The most common type of damages in a contract case are: A) Reformation B) Compensatory C) Specific Performance D) Injunction E) A and B

Which of the following forms of Intellectual Property are protected only under state law or common law? A) Trademarks B) Trade names C) Copyright D) Patents E) A and B

13) What type of environmental controls are required by the Safe Drinking Water Act of 1974? A) Reasonably available B) Best available C) Maximum achievable available D) Best practical available E) Absolute best available

B) Best available

18) What document sets the rules that govern the operation of the corporation?

B) Bylaws

What is the most important clause in the Constitution to the business world? A) All men are created equal B) Commerce among the states C) Separate but equal D) No state can deny anyone of due process of the law E) The laws of the U.S. are supreme to the state laws

B) Commerce

11) The ultimate control over regulatory agencies is held by:

B) Congress

***Which Texas court that can hear criminal matters is elected by a state-wide election? A) Supreme Court B) Court of Criminal Appeals C) Court of Appeals D) District Court E) B, C, and D

B) Court of Criminal Appeals

15) The Kefauver-Harris Amendment deals with:

B) Drug Effectiveness

1) When you want to correct inaccurate billing on a credit card statement, what law can you use? A) TILA B) Fair Credit Billing Act C) Consumer Leasing Act D) Fair Debt Collection Protection Act E) Any of the above

B) Fair Credit Billing Act

A challenge for cause in voir dire is: A) Automatic and definite when requested by either of the litigation attorneys B) Granted by the judge of the case C) The same thing as a peremptory challenge D) Only used in civil cases E) All of the same

B) Granted by the judge

7. Which business entity was created in Texas in 1991? A) LP B) LLP C) LLLP D) S corporations E) PC

B) LLP

14) Under Sarbanes-Oxley who must be on the audit committee?

B) Outside Directors

4) The major area of concern in water pollution is A) Automobiles B) Point sources C) Smoke stacks D) Midnight dumpers E) Wetlands

B) Point sources

10) Sarbanes-Oxley created a regulatory agency to establish and enforce ethical and auditing standards for auditors of public companies; this agency is called:

B) Public Company Accounting Oversight Board

1) "Short Swing" Profits are set by:

B) Rule 16b of the '34 Act

What is price discrimination? A) An area of anti-trust activity that is handled by the per se rule B) Selling your product to one entity for one price and selling the same product to another entity for a different price without justification C) Selling your product below your cost D) Selling your product to people of the same race as yourself for a cheaper price than people of different races E) A and B

B) Selling your product to one entity for one price and selling the same product to another entity for a different price without justification

Bryan, Texas is in what Federal District Court? A) Northern B) Southern C) Eastern D) Western E) Central

B) Southern

11) Mike promises in writing to pay the debt owed by Mary in the event that Mary does not pay the debt. If the Creditor, Tom, correctly goes after Mike without suing Mary, Mike is a A) Guarantor B) Surety C) Third party beneficiary D) B and C E) All of the above

B) Surety

20) What is the power that sets aside the regulatory agencies from other branches of gov't?

B) They have enforcement power in and of themselves

An application for Writ of Certiorari is used to gain admittance to what court? A) Texas Supreme Court B) U.S. Supreme Court C) Texas Court of Criminal Cases except in capital murder cases D) Any Texas Court of Appeals E) Any U.S. Court of Appeals

B) U.S. Supreme Court

If a supplier mergers with a retailer this would be a: A) Horizontal merger B) Vertical merger C) Market extension merger D) Geographic extension merger E) Conglomerate merger

B) Vertical merger

17) When does a regulatory agency have to utilize formal rule making procedures?

B) When creating Substantive Rules

18) Which of the following is true about the homestead exemption in Texas? A) There are 3 types of homesteads in Texas B) You can only select one type of homestead in Texas C) The homestead exemption is capped at a maximum of $150,000 per homestead D) There is no difference in any of the homestead exemptions whether you are married or single E) You can choose a rural and an urban homestead

B) You can only select one type of homestead in Texas

You should only ask a question in a trial that begins with "Why" when: A) You just simply want the info. from the witness B) You know the answer the witness will give C) When the witness is not being cooperative D) A and B E) All of the above

B) You know what the answer is going to be

19. What profession first used LLPs in large numbers? A) attorneys B) accountants C) bankers D) dentists E) doctors

B) accountants

CBS v. BMI

BMI and ASCAP set the prices for Copyright (Horizontal) --There's no way of knowing how many times a song is sung, etc. --BMI and ASCAP set prices based on a guess --Defense: it's the only way to do it --Court Ruled in favor of BMI b/c of Rule of Reason (Footnote 59 no longer the absolute rule)

Rescission

BOTH parties agree to terminate contract without performance --Must be supported by consideration ----Called Restitution ----Otherwise gratuitous promise and if not enforceable

Religious Discrimination

BUT Employees must reasonably accommodate employee's religious beliefs unless it constitutes an undue hardship on the employer

BACT

Best Available Control Technology --For new plants --Cost NOT a factor

BACT

Best Available Control Technology --New stationary sources --Can be required if part of state plan to reduce air pollution in that AQCR --More expensive

BPCT

Best Practical Control Technology --All previously existing sources --For existing plants: cost severity & time are factors

Interstate commerce

Between states

What does it take to legally have adequate consideration? How do you know if it is an adequate amount?

Both parties must agree to do something that he/she is not already legally required to do, or refrain from doing something he/she has a legal right to do

The most common form of lawsuit

Breach of contract

BMI

Broadcast Music Incorporated

Taylor Farms Specific

Broccoli

Sole Proprietorship

Business <=> Owner --Owner has unlimited personal liability --No special requirements to operate --Difficulty of selling the business --Difficulty in raising capital --Taxes paid by owner --LEAST desired type of business org. --But, most biz by ppl

Disney Example

Business Judgment Rule -Derivative lawsuit against Board of Disney for hiring Michael Ovitz (not the right person for the job) -$140 million severance package paid to Ovitz -Judge felt the Board believed they were acting in the best interests of the company and were not grossly negligent, so Business Judgment Rule applied

"Closed Shop"

Business that required workers to join union before they could work there --Outlawed by Taft Hartley Act

What are the current parameters of search and seizure law as applied to businesses?

Businesses have protection against unreasonable search and seizure, but not as protected as individuals -Administrative Warrants for businesses are easily obtained -No warrant needed for highly regulated industries or where there are health concerns --- Liquor, guns, food, meat packing

How was the FDA created?

By the Pure Food and Drug Act (Response to "The Jungle")

A President can independently create law through: A) Appointing Federal judges B) The power of the veto C) Executive Orders D) The State of the Union Address E) All of the above

A contract where Tom and Jerry entered into a contract and Tom has fully performed all of the obligations of the contract but Jerry has not completed the requirements of the contract is called: A) Executed contract B) Executory contract C) Partially executed contract D) Bilateral contract E) Unilateral contract

A court order forcing someone to perform the obligation to a contract that the party had previously agreed to do and then refuse to do, is called: A) An equitable remedy called an Injunction B) A legal remedy called an Injunction C) An equitable remedy called specific performance D) A legal remedy called specific performance E) A and C

An example of a situation where the law has determined that there is no legal offer is: A) A counteroffer B) A normal auction C) Normal advertisements D) All of above are non-offers E) A and C only

Defenses to Assault and Battery include all of the following except: A) Consent B) Privilege C) Truth D) Self-defense E) All of above are defenses to Assault and Battery

If Jack sues Jill, but recovering money does him no good, Jack is seeking what types of damages? A) Legal B) Monetary C) Equitable D) A and B E) All of the above

If Mary is legally crazy but has not been so determined by the courts until after she enters the contract, the contract as to Mary is: A) Valid B) Void C) Voidable D) Unenforceable E) Illegal

Mary things that Sterling is the best looking guy in school. Mary asks Sterling out and he rejects her. She finds out that Sterling is a gay and dances at a Gay Bar. Mary tells the whole class at the next class meeting. Sterling sues Mary for Defamation and Invasion of Privacy. Sterling will: A) Win both cases if he can prove that he suffered damages B) Win if people in the class heard the accusation and the accusation is in fact true C) Lose the Defamation case if in fact he is a gay and dances at the alleged club but win the Invasion of Privacy case if there was disclosure of private facts D) Lose the Defamation case if in fact he is a gay and lose the Invasion of Privacy case since he dances in public at a gay bar and who cares if he is a gay E) There is insufficient information to formulate an answer to this question

The Lanham Act covers A) Copyrights B) Patents C) Trademarks D) Trade secrets E) Trade names

What facts must be present to give rise to an Agency by Estoppel? A) The Agent must have actual authority from the Principal B) The Agent must have implied authority from the Principal C) The Principal's actions or inactions must lead a reasonable third party to believe that the Agent has the Principal's authority D) The Principal must give the Agent the authority after the agent has already acted E) C and D

Which of the Intentional Torts does Texas NOT recognize? A) Infliction of emotional damages B) Intentional interference w/contractual relations C) Interference w/prospective economic advantages D) Malicious prosecution E) B and C

Which of the following is not a true contract? A) Expressed contract B) Implied by fact contract C) Implied by law contract D) Unilateral contract E) Bilateral contract

1) How was the Sherman Anti-trust Act used by Employers to stop Unions? Sherman: A) Specifically outlawed unions B) Allowed yellow dog contracts to exist C) Was used to get an injunction to stop unions D) All of the above E) None

15) Under Wagner, who is a covered employee? A) Gov't employees B) Maids C) Electrical workers D) Agriculture workers E) Butlers

15) What is/are a/the major provision(s) of the Fair Labor Standards Act of 1938? A) Minimum wage of $8 per hour B) Creation of a 40 hour work week C) Restrictions on child labor D) A, B, and C E) A and B only

6) The exception to the rule on Secondary Boycotts is: A) Wildcat strikes B) Hot cargo agreements C) Ally doctrine D) Charging excessive union dues E) None

7) When the employer fired employees for joining unions and then reported them to other potential employers, this was called: A) Yellow dog contracts B) Red starring C) Black-listing D) Blue hazing E) Green herring

What is the difference in registering a trademark and not?

Cannot defend your Trademark from others unless it is registered

3. If your primary objective is to give all the owner(s) limited liability, your choice for a type of business entity should be a: A) sole-proprietorship B) partnership C) corporation D) limited partnership E) any of the above give the owner(s) limited liability

C) Corporation

***Which Texas Court must have an attorney in good standing as the judge? A) Municipal Court B) Small Claims Court C) County Court at Law D) County Court E) C and D

C) County Court at Law

12) In the Clean Water Act, the EPA sets the stiffest standards for A) Agricultural use B) Industrial use C) Drinking water D) Propagation of fish E) Recreation

C) Drinking water

4) Regulatory Agencies were held to be invalid or at least constitutional suspect during what President's Administration?

C) FDR

4) Which Consumer Act applies to collection agencies? A) Truth in Lending Act B) Fair Credit Billing Act C) Fair Debt Collection Protection Act D) Fair Credit Reporting Act E) All of the above

C) Fair Debt Collection Protection Act

9. Where did LLCs begin? A) Japan B) China C) Germany D) England E) France

C) Germany

If Chrysler merged with GM, what type of merger would this be? A) Product extension merger B) Geographic extension merger C) Horizontal merger D) Vertical merger E) A and C

C) Horizontal merge

8) What product did I use as an example in class of being recalled by the CPSC?

C) Lawn darts

16) Which of the goals of CalPERS when dealing with institutional investors became part of Sarbanes-Oxley?

C) Make the audit committee be totally composed of outside directors

1) What environmental law was the first one in the US to give the country a permit system? A) Clean Air Act B) Clean Water Act C) Rivers and Harbor Act D) Federal Water Pollution Control Act E) Resource Conservation and Recovery Act

C) Rivers and Harbor Act

8) Who enforces the NAAQS? A) Municipal gov'ts B) County or parish gov'ts C) State gov'ts D) All of the above E) National gov't

C) State gov'ts

What are Requests for Admission? A) Oral questions asked in a "trial like" setting by the attorneys in the lawsuit and recorded then transcribed by a court reporter B) Written questions sent to a party to the lawsuit that must be answered by that party and filed with the court C) Statements that that party to the lawsuit is required to either admit or deny D) A requirement to turn over documents for inspection E) A request to investigate the scene of the incident

C) Statements that that party to the lawsuit is required to either admit or deny

12) Which of the following types of reforms or reform agencies does not apply to the Federal Agencies?

C) Sunset Laws

The primary concern in anti-trust law is: A) Profitability of the target company B) Market power of the target company C) The good of the consumer D) The good of the target company E) All of the above

C) The good of the consumer

13. Which of the following is true about a partnership? A) it is the oldest form of business entity B) it is the simplest form of business entity C) there are no formalities to forming it D) it can last forever E) a, b and c

C) there are no formalities to forming it

CHAPTER 10

CHAPTER 10 REVIEW QUESTIONS

CHAPTER 12

CHAPTER 13

CHAPTER 14

CHAPTER 2

CHAPTER 3

CHAPTER 4

CHAPTER 6 REVIEW QUESTIONS

CHAPTER 7

CHAPTER 8

CHAPTER 9

Torts

CIVIL wrongs (other than breach of contract) for which the law provides remedy in the form of punitive damages, dealing with involuntary transactions, did not mean to enter into -Primarily dealing with the rights and duties of the parties to these involuntary transactions: 1) Accidents 2) Assaults 3) Intentional interference with contract 4) Fraud 5) Others

"Per Se with a Twist"

Called Per Se by the gov't, but it's really Rule of Reason --Applies ONLY to gov't guidelines for Tying Arrangements

Constitutional Convention of 1787

Called to amend the Articles of Confederation -Ended up throwing the Articles out and writing a whole new Constitution

What can and cannot be registered in a trademark?

Can NOT: --Immoral, deceptive or scandalous matter --Flag or coat of arms --Name, portrait, or signature of living person --Mark too similar to another trademark --Consists of a mark

Espionage Act (1996)

Can get restitution for misappropriation through the criminal courts

Dissolution of LLC

Can occur when: 1) Reaches the end of a fixed period 2) Occurrence of specified events in Operating Agreement 3) Action to dissolve by members 4) No members remain 5) Entry of a decree of judicial dissolution --Creditors paid first, owners paid last --Articles of Dissolution filed --Certificate of Dissolution terminates LLC

Homestead Exemptions

Can only levy on property that is not already encumbered --Can only have ONE 1) Urban Homestead 2) Rural Homestead

What is the difference in a registered copyright and an unregistered copyright?

Can only sue infringers if copyright is registered --Registered works become public record --After 5 years, registration serves as prima facie evidence of ownership --Registered works can have international protection If NOT registered: --Can get only Actual Damages, Do not get statutory damages or attorney's fees and costs

Disparate Treatment PAGE 344

Cannot treat employees differently on basis of race, religion, sex, color, national origin, etc. --Must prove INTENT to discriminate 1) Employee must prove prima facie 2) Must give non-discriminatory reason 3) Must show employer lied and actually meant to discriminate

Authorization Cards

Cards signed by employees expressing their interest in unionization --At least 30% of employees must sign authorization cards in order to trigger an NLRB representation election

Homestead Steel Strike

Carnegie was off on vacation and the manager decided to cut the workers' salary to impress his boss --> led to strike --Hired the Pinkerton Guard to beat the workers into going back to work --Never charged with any crime

Removal Doctrine

Case can be removed to Federal District Court -Utilized by Defendant when there is diversity of citizenship in state court

How is Federal Court Jurisdiction established?

Cases involving: -The constitutionality of a law -The laws and treaties of the U.S. -Ambassadors and public ministers -Disputes between two or more states -Admiralty law -Bankruptcy cases

Superseding Cause

Causal Connection is broken by intervening act or cause --i.e Palsgraf: If earthquake caused ground to shake --i.e. Dominoes: someone knocks over a domino closer to the end, but before the one meant to hit it has a chance to fall

Preemptive Power

Certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. -As such, a state may not pass a law inconsistent with the federal law

How is a Limited Partnership created?

Certificate of Limited Partnership (with at least 1 General and 1 Limited Partner)

Schechter Poultry Corp v. U.S.

Challenged the NIRA --Ruled the delegation of legislative power to be unconstitutional --FDR furious, threatened to change the # of supreme court justices to 15 --> "Switch in Time Saved Nine": Conservative Justices started voting for New Deal

Food Quality Protection Act (FQPA) of 1996

Changed Zero Risk standard to "reasonable certainty of no harm" standard --Expanded FDA jurisdiction to include over 9000 pesticides

What was the zero risk standard of the Delaney Clause? What was it changed to be?

Changed to "reasonable certainty of no harm" standard

Citizens United v. Federal Election Commission

Changes everything about political speech by a business -Federal Law -Bipartisan Campaign Reform Act of 2002 (BCRA), Austin v. Michigan Chamber of Commerce, and McConnell v. Federal Election Commission declared unconstitutional -Businesses can run adds about candidates that are false

Price Discrimination

Charge different buyers' different prices WITHOUT JUSTIFICATION --Almost always brought by individuals (private lawsuit) --Restricted by Clayton

Price Discrimination

Charge different buyers' different prices WITHOUT JUSTIFICATION --Essentially Vertical --Nearly ALL cases are brought to court by the public b/c of all the loopholes 1) Defendant must price the product below cost 2) Defendant was then able to monopolize the market 3) Monopoly lasted long enough for the defendant to recoup losses suffered to drive competition out of business

NCAA v. Oklahoma

Charged NCAA with Price Fixing --Schools could only have their games on TV 5 times every 2 years --Oklahoma was on a roll with big games --OK charged NCAA with forcing them to fix prices --NCAA Defense: Rule of Reason, it's the only way to make it fair(can't let one team on TV more than others just b/c they're winning) --Court Ruled: NCAA lost, Rule of Reason not enough

Usery

Charging too much interest in a transaction -Double usurious interest rate illegal -i.e. Texas rate was 18% --> double usurious was 36% -If interest is double usurious, don't have to pay contract AT ALL, plus they have to pay them back +3 times the interest & lawyer fees

Complaint

Civil lawsuit filed by a plaintiff with the clerk of the applicable court -Aka Petition

"SM"

Claiming a Service Mark

"TM"

Claiming a Trademark

Durham-Humphrey Amendment (1951)

Clarified between what drugs were prescription and which could be over the counter --Response to Thalidomide (sedative used in Europe)

Creditwatch v. Jackson

Clarified the tort of Intentional Infliction of Emotional Distress as a "gap filler" claim and cannot be used to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines

S Corporations

Closely held corp. that meets requirements of the IRS to qualify --Taxed like a partnership (NO double taxation) --Shareholders have Limited Liability --MUST be domestic corp. --No more than 100 shareholders (if one dies, becomes C Corp.) --Shareholders must NOT be non-resident aliens --Profits pass through to shareholders

What is an S Corporation? What are the requirements of an S corporation?

Closely held corporation that meets requirements of the IRS and is taxed like a partnership (No double taxation) --Must be domestic w/resident shareholders --No more than 100 shareholders --Profits pass through to shareholders

Colonnade Corp v. U.S.

Closely regulated industries require no warrant --i.e. Liquor and Firearms

Federalist Papers

Collection of articles by Madison, Jay, and Hamilton supporting the ratification of the Constitution -Often used as a guide by the courts in interpreting the Constitution

Vertical Merger

Combines 2 firms up and down the business chain (such as retailer and wholesaler)

LLC

Combines positive aspects of traditional corporations (limited personal liability) w/ positive aspects of partnership (NO double taxation) --NOT required to keep records like a corp. --Less start-up costs

Guth v. Loft, Inc

Courts have low tolerance for breach of Loyalty --Unselfish loyalty to the corporation demands there be no conflict between duty and self-interest

Gonzales v. Raich

Commerce Clause did authorize Congress to prohibit the local cultivation and use of marijuana for medicinal purposes do to the rational basis test due to the commercial value of the marijuana and the national gov'ts interest in it being sold

Acceptance of Unilateral Contracts

Common Law: performance is complete -Trend [minority rule]: ---substantial amount of work complete, can't stop the work OR ---mustpay for work done when the work was stopped

Geographic Market Extension

Company merges with another company that sells the same product but in a totally different geographic region of the Country when they had no contact prior to the merger --i.e. Blue Bell (TX) & Purple Rabbit Ice Cream (WV)

Compensatory Damages

Compensates for injuries actually sustained, proven to have arisen from the breach --Majority rules does NOT give you expectancy damages --i.e Construction contracts

Horizontal Market Division

Competitors divide the market place base on: 1) Geography 2) Product 3) Function --Per Se ILLEGAL so long as it involves more than one company

CERLA

Comprehensive Environmental Response, Compensation, and Liability Act --The Superfund --Regulates the cleanup of previously existing hazardous wastes sites --

Appellate Court

Compromise the higher rungs of the ladder that lead to the highest court -Determine if errors (mistakes) were made by the lower courts -No jury -No witnesses

National Electronic Injury Surveillance System

Computerized system to receive reports of consumer product injury data from hospitals

Miller v. California

Concerning Obscenity/Pornography -Test: did the work taken as a whole lack serious, literary, artistic, political, or scientific value? -Difficult to understand -Today obscenity is defined by the community standard, not the supreme court

Yakus v. U.S.

Confirmed the delegation of legislative powers WAS constitutional --> Administrative Agencies held to be constitutional

Who has the ultimate control over Administrative Agencies?

Congress --By allocation of money and interpretation of power scope --Interest Group activity has strong influence as well

What has the ultimate control over Agencies?

Congress --By control of money/funds

Wickard v. Filburn

Congress can regulate what appear to be trivial acts if the aggregate effect is national significant

NLRB v. Jones & Laughlin Steep Corp

Congress could regulate in areas that have a "serious effect upon interstate commerce"

Command-and-Control Regulations

Congress places emissions limits on the amount of certain wastes that each polluter can out into the environment --All producers treated equally --Amount of emissions can be limited directly DISADVANTAGES: --Limits difficult to enforce --Each firm constantly monitored --All producers are NOT equal --Problem: what is the optimal tax rate?

First General Incorporation Law

Connecticut (1837) --Anyone could incorporate for any lawful purpose

Proximate Cause

Consequences must bear a reasonable relationship to the negligent conduct --Harm must be foreseeable

Supreme Law

Constitution -All laws must be found to be constitutional, or they cannot exist or be enforced

Know how the United States arrived at a Constitutional form of gov't? What were the major compromises?

Constitutional Convention b/c Articles of Confederation created too weak of a central gov't -Virginia Plan: Representation based on population -NJ Plan: Representation equal for all states -The Great Compromise: -Population representation in the House, -Equal representation in Senate -3/5 Compromise: slaves counted as 3/5 of a person, South had to stop importing slaves in 20 years

Hutchinson v. Proxmire

Constitutional privileges are limited -Have to be involved in OFFICIAL capacity/duties to be protected

CCPA

Consumer Credit Protection Act -Purpose: to make use of credit more uniform & Require DISCLOSURE to the consumer about the cost of the credit extension --Umbrella Law: contains many different provisions and subsections (TILA, FDCPA. FCRA, etc.)

CPSC

Consumer Product Safety Commission --Social Era

Lessee

Consumer, individual to whom the lease is offered

Complete Performance

Contract fully discharged, terminated legally

Executed Contract

Contract has been fully performed by all parties

Conditional Precedent

Contract only valid IF/WHEN something happens

Unenforceable

Contract that was valid at one point in time, but something happened to render it unenforceable -i.e. Law change

Un-adjudicated Insane

Contracts are voidable --BUT still have to pay restitution

Exclusive-Dealing Contract

Contracts under which a seller stops a buyer from purchasing the seller's competitors products --Prohibited under Clayton, Section 3 if effect is to substantially lessen competition or tend to create monopoly

What is the concept of Judicial Review? How is it established?

Courts have the power to interpret the constitution and rule on the constitutionality of laws/statutes -Marbury v. Madison

Refrigerator Safety Act

Requires old refrigerators to be open to prevent accidental suffocations

2) What are "yellow dog contracts"? Do you agree that contracts of this kind should currently be illegal?

Contracts whereby an employee as a condition of taking a job had to agree not to join a union or engage in any union organizing activities --Courts upheld the practice pursuant to the doctrine of "Freedom of contract" --List of union people were black-listed and no one would hire them

Yellow Dog Contracts

en banc decision

Controversial cases representing important public policy issues are heard by all members of the court of appeals in a given circuit

Compulsory Licensing

Copyright holder must grant permission to anyone to use work after the work has been distributed to the public --Applies to sound recordings [Phonorecords]

Sonny Bono Copyright Extension Act of 1998

Copyright lasts the author's lifetime plus 70 years [used to be 50] --Extended copyrights due to pressure from Disney --Except if publisher owns it: (lesser of 2) 1) 95 years after publication OR 2) 120 years after creation

What was the effect of the Sonny Bono Copyright Extension Act of 1998?

How is a corporation created?

Corporate Charter, Articles of Incorporation

The dominant means by which business activity is organized

Corporate form of business

Why was Administrative Agency created?

Country was shifting from agrarian to industrial economy, people got rich, and took their money and turned business into monopolies [business relations grew more complicated] --The body big and powerful enough to regulate these businesses was the federal gov't --Regulatory Agencies created by Congress to specialize in creating checks on businesses and reporting back to Congress

Last Clear Chance Doctrine

Court asks who had the last clear chance to avoid the incident and did not

Dr. Miles Medical Co v. John D. Park and Sons Co.

Court case on Resale Price Maintenance (RPM) 1) When the manufacturer of a product tells the buyer that they must sell the product for a stated amount 2) Normally RPM's are where the manufacturer requires the buyer to agree not to sell their product below a certain price 3) Utilized to protect the integrity of the product --Vertical Price Control is PER SE Illegal

Allied Structural Steel v. Spannaus

Court declared a state law to be unconstitutional under the Contracts Clause b/c the state regulation of private pension funds altered significantly the contractual obligations of employers under previously existing private, unregulated pension funds

Michell v. Helms

Court has allowed gov't funding for books and computers

Zelman v. Simmons-Harris

Court has allowed vouchers to be given by gov't for people to send children to private schools

Adjudicated Insane

Court has ruled person is insane -Judge is ruling that person has no capacity to enter into a contract --> All contracts void (never recognized under law)

U.S. Trust Company of NY v. NJ

Court held a state statute that decreased the value of state guaranteed bonds which had been sold before passage of the statute by increasing their risk after the statute was passed UNCONSTITUTIONAL under Contracts Clause -Showed that courts do sometimes offer some protection to businesses due to Contract Clause

Barron v. Baltimore

Court held that the Bill of Rights did not apply to the States

Henningsen v. Bloomfield Motors

Court held there was an Implied Warranty of Merchantability --Did not require privity

Supreme Court

Court of last resort for all cases decided in the federal court system -All cases are appealed from the state's highest courts -8 associate & 1 chief justice -All cases are en banc

Legal Remedies

Court order requiring a party to compensate another for damages incurred against that party -Aka, Judicial Relief -i.e. compensatory damages, punitive damages, liquidated damages, etc. -Pay for damages after the harm has been done

Writ of Execution

Court order to seize non-exempt property of the Debtor --Difficult b/c there are so many exemptions --Good for 10 years and can be renewed --Executing officers either Sheriff or Constable

Writ of Garnishment

Court order to seize the money of someone else --Usually directed towards financial institution where Debtor has money on deposit --Can NOT garnish peoples' wages in TX (Except for Child Support) --Can ONLY be issued by the Court

Specific Performance

Court ordered performance of the contract --Rare b/c difficult to enforce quality --i.e. Land

Boomer v. Atlantic Cement Co.

Court refused to issue an Injunction due to the cost of eliminating the nuisance being greater than the benefit to the neighbors

U.S. v. Morrison

Court ruled that Congress had exceeded its constitutional bounds in the Violence Against Women Act -b/c it was non-economic and did not fall under Commerce Clause -Limited Congress' use of the Commerce Clause

U.S. v. Eichmann

Court ruled that the Federal Flag Protection Act of 1989 was unconstitutional, just like Texas' law

Pretrial Conference

Court's technique for pushing the case toward settlement or forcing the parties to prepare for trial -Hear pretrial motions to decide issues before the actual trial 1) Motion to dismiss for failure to state claim - no lawful grounds 2) Summary judgment - both parties agree to the facts 3) Challenge venue 4) Temporary Orders -Time requirements for filing

Contracts Clause

Courts generally recognize that a State has a superior right of States to pass laws that impair contracts

Subject matter jurisdiction

Courts of limited jurisdiction, only hear certain types of cases -Established in 2 ways: 1) Involve a federal question (Constitution, Federal Statute, Treaty, Federal Administrative Agencies) 2) Diversity of citizenship (citizens of 2 different states AND amount must exceed $75,000)

Mechanic's, Contractors, or Materialmen's Lien

Covers actions on Real Estate where there is: 1) Repairs 2) Improvement 3) Labor or materials 4) Specially fabricated material

Workers' Compensation

Covers employee regardless of fault --Does NOT cover an intentional act to get workers' comp. --Usually get it in Lieu if Tort Law --Began in Wisconsin (1911)

What is the main job of most regulatory agencies?

Create checks on businesses and report back to Congress

Payne v. Western (1884)

Created Employment-at-Will where the employee can quit at any time

Executive Law

Created by the President

Plessy v. Ferguson

Created doctrine of "Separate but Equal"

Administrative Law Judge (ALJ)

Created for specialization/expertise -Tax Court -Bankruptcy Courts -Claims Court -Court of International Trade ---Decisions of such cases may be appealed within the agency ------May then be appealed to the Federal Circuit Court of Appeals

Central Hudson Gas and Electric Corp. v. Public Service Commission of NY

Created the Four Prong Test for restricting speech -During Arab OPEC oil embargo --> Conservation of fuel --> NY forbid advertisement for non-essential use of power -Central Hudson kept advertising BBQ gas grills, safety lights, etc. -NY was afraid there wouldn't be enough fuel for winter -Court: Banning went too far -- NY should have advertised against the power companies instead

FCC

Created to regulate Communication Industry

SEC

Created to regulate Securities Industry

Poison Prevention Packaging Act (PPPA)

Creates child resistant packaging

CROA

Credit Repair Organizations Act --Ensure truthful disclosure of all info about the services sold to consumers by credit repair organizatios

Willful violation resulting in death

Criminal Charges

Taft Hartley Act

Cuts back Union power --Aka Labor-Management Relations Act, Aka "Slave Labor Act" [Labor = Management in Relations Act] --Point was to get the gov't out of taking sides in labor issues --Sharp increase in unionization 1935-1941 (WWII-->high demand for war materials) --Truman vetoed, Congress over-rode the veto --Restores Free Speech taken away from Management by Wagner

Assuming you live in a minority jurisdiction, if Mary offers you $100 to walk across a high wire from the Wehner Bldg. to the Horticulture Bldg., when do you accept the unilateral offer? A) When you start the trip across the high wire B) When you complete 25% of the trip across the high wire C) When you complete 50% of the trip across the high wire D) When you complete a substantial amount of the trip across the high wire E) When you totally complete the trip across the high wire

In Two Pesos v. Taco Cabana the Supreme Court held that a Mexican-style restaurant could not copy the décor of a competitor because of the law protecting: A) Copyrights B) Patents C) Trade names D) Trade dress E) Trade secrets

One of the biggest companies to benefit from the Sonny Bono Copyright Extension Act of 1998, as discussed in class, was A) Hanna Barbara B) Budweiser C) Microsoft D) Disney E) Random House Publishing

Ricky and Lucy are driving to Los Angeles with Fred and Ethel. Ricky and Lucy own the car. Fred is driving and has a wreck. Ricky sues Fred for the damages to Ricky's car. What type of law(s) is/are involved when Ricky sues Fred? A) Federal B) Public C) Criminal D) Civil E) All of the above

Statutory Law can come from all of the following except: A) City Councils B) State Legislatures C) The U.S. Congress D) Administrative Agencies or Judicial decisions E) County or Metro gov'ts

The Student Body President at a major university goes to a party and gets drunk. He then tells all of the attendees at the party that the very popular basketball coach is really a child molester and that he was at a meeting where the President of the University has decided to fire the coach. One of the party goers is the editor of the Univ. student newspaper and she makes this the headline story in the next edition of the paper. The basketball coach sues for Defamation per se. What must he prove to win? A) That the statements were false B) That the harm is so bad that he would not have to prove harm C) That the supposed Defamation was actually published D) All of above E) A and B only

To be voidable, a mistake must be: A) Unilateral B) Bilateral C) A mutual mistake of value D) A mutual mistake of material fact E) All of above

When the President of the U.S. creates a law to control the policies of the Executive Branch during his administration, this is called: A) Appointing Federal judges B) Presidential oversight C) Judicial Review D) Executive Order E) A and D

Which is the most important source of law? A) Administrative Law B) Common Law C) Statutory Law D) Constitutional Law E) Executive Orders

Which of the following is NOT a source of law? A) Administrative B) Judge-made C) Statutory D) Presidential opinions E) Judicial interpretation

You get the chance to go to Italy for study abroad but you have a lease. You get one of your friends to take over you lease. If you get the landlord to release you from the lease and substitute your friend for you in the lease, the landlord has: A) Discharged your contractual obligations B) Entered into a Novation C) Entered into a Sublease D) A and B E) A, B, and C

12) For a representative election to be held, the Union must collect authorization cards from how much of the work force? A) 10% B) 22% C) 25% D) 30% E) 33%

18) Which of the following are necessary steps to prove a prima facie case of disparate treatment in a hiring situation? A) That you are qualified for the job B) That the employer is seeking applications C) That they have a practice that results in discrimination in hiring techniques D) A and B E) A, B, and C

2) Which labor law was passed by Congress over a Presidential veto? A) Norris LaGuardia B) Wagner C) National Labor Relations Act D) Labor-Management Relations Act E) Labor-Management Reporting and Disclosure Act

5) Which labor law outlawed closed shops? A) Norris LaGuardia B) Wagner C) National Labor Relations Act D) Taft-Hartley E) Landrum-Griffin

7) The Equal Pay Act deals with what class(es) of workers? A) Race B) Color C) Religion D) Sex E) All of the above

9) When the first cleanup barge reached the Exxon Valdez disaster site 14 hours after the accident how much of the Alaskan coastline, in miles was covered in oil? A) 1 B) 11 C) 110 D) 1100 E) 11000

D) 1100

6) Mike and Mary are a married couple. Their rural homestead in Texas is A) 100 acres B) 100 acres and all of the improvements thereon C) 200 acres D) 200 acres and all of the improvements thereon E) None of the above

D) 200 acres and all of the improvements thereon

19) What are the penalties for violation of the '33 Act?

D) 5 years in prison & $10,000 fine

13) To obtain a Writ of Execution, you must have reason to believe that the debtor is A) About to leave the state B) About to take the property out of state C) Simply indebted to you D) A and B E) A, B and C

D) A and B

The Necessary and Proper Clause is also called the: A) Inherent Powers Clause B) Elastic Clause C) Implied Powers Clause D) All of the above E) None, only called Necessary and Proper

D) All -Inherent Powers Clause -Implied Powers Clause -Elastic Clause

18) When the EPA sets the NAAQS, what is of secondary concern to the EPA? A) Vegetation B) Climate C) Visibility D) All of the above E) Human beings

D) All of the above

9) What must be disclosed by Regulation Z of TILA? A) Starting date of the obligation B) Cash price of the transaction C) Number of payments D) All of the above E) A and C only

D) All of the above

What case overruled the Separate but Equal Doctrine? A) Gibbons v. Ogden B) Wickard v. Filburn C) Plessy v. Ferguson D) Brown v. Board of Ed. E) Katzenback v. McClung

D) Brown v. Board of Education

5) Which of the following federal regulatory agencies was/were created during the Social Conscious Era of 1960s and 1970s?

D) CPSC, OSHA, and EPA

7) Reorganization Bankruptcy for individuals with a set income is found in what Chapter of the Federal Bankruptcy Code? A) Chapter 7 B) Chapter 9 C) Chapter 11 D) Chapter 13 E) Chapter 15

D) Chapter 13

The FTC usually enfoces A) Sherman B) Clayton C) FTC D) B and C E) All of the above

D) Clayton & FTC

If the state of Louisiana passes a law that treats "white people" one way and the African-Americans a different way, how would the Louisiana gov't have to justify the difference? A) Rational basis test B) Substantial interest test C) Suspect Classification test D) Compelling, overriding test due to a suspect class being involved E) A total, absolute test

D) Compelling

6) An agency where the President of the US appoints the head official and can remove the head official is called a/an:

D) Executive & Dependent Agency

1. Which of the following is true about a limited liability company A) it is the oldest form of business entity B) it is the simplest form of business entity to create C) it requires no formalities to create it D) it can last forever E) a, b and c

D) It can last forever

Who is generally credited with writing the Constitution? A) Thomas Jefferson B) Alexander Hamilton C) John Jay D) James Madison E) James Monroe

D) James Madison

14) If an already existing plan emits mercury, what type of air pollution controls must be installed? A) RACT B) BACT C) BPCT D) MACT E) None of the above

D) MACT

Which is/are exempt from the Anti-Trust Laws discussed in class? A) NBA B) NHL - National Hockey League C) NFL D) MLB E) All of the above are exempt

D) MLB

15) What is the real name of the Ocean Dumping Act? A) Oceans Protection Act B) Oceans Preservation and Permit Act C) Marine Wildlife and Fish Research Act D) Marine Protection, Research and Sanctuaries Act E) Ocean and Marine Protection and Wildlife Sanctuaries Act

D) Marine Protection, Research and Sanctuaries Act

11. What must be included in the filing that is necessary to create a LLC? A) name of the LLC B) the purpose of the LLC C) name and address of each incorporator D) a and b E) a, b and c

D) Name & Purpose of the LLC

7) When the EPA created the environmental standards for Texas what was Texas required to create? A) RACT B) BACT C) MACT D) SIP E) BPCT

D) SIP

17) Which is the proper official to file your papers to create a corporation if you want to incorporate in TX?

D) Secretary of State

9) What was an example of a product that was removed from the market by the FDA that was later allowed to be put back on the market when it was determined that the FDA was wrong?

D) Silicon breast implants

4) Which of the following statements is/are true about 'Short-Swing' profits?

D) There are no defenses, -Insider info is deemed to be used & -The corp. is supposed to sue to recover the profit

Who advocated a wall of separation between church and state? A) James Madison B) John Jay C) George Washington D) Thomas Jefferson E) James Locke

D) Thomas Jefferson

20) The Consumer Leasing Act applies to A) Real Estate leases B) Business leases C) Corporations D) When total payments do not exceed $25,000 E) Only to consumer loans of more than $25,000 such as a lease on a Lexus automobile

D) When total payments do not exceed $25,000

20. Which of the following is true about a corporation? A) it is the oldest form of business entity B) it is the simplest form of business entity C) there are no special requirements to create it D) it can last forever E) a, b and c

D) it can last forever

Liquidated Damages

Damages stipulated in contract in event of breach --i.e. construction contracts --Cannot be excessive (Punitive Damages), must be reasonably estimated

Consequential Damages

Damages that flow from the result of the breach and are only recoverable if they are reasonably foreseeable and the non-breaching party tried to mitigate damages --Aka Special Damages --Can be foreseeable by only one party

Baxter v. Ford Motor Company

Deals with Express Warranty --Warranty saying had tri-plex, non-shatterable glass --Warranty Law = Contract Law --Tort case using contract principles --Manufacturer (Ford) held liable for whatever they promised their product would do

Children's Gasoline Burn Prevention Act (CGBPA)

Deals with portable gasoline containers

McCreary County, Kentucky, et. al. v. American Civil Liberties Union of Kentucky

Dealt with a courtroom display of 9 framed documents, each denoting Christianity -Display held to be unconstitutional b/c it denoted only one religion

Grutter v. Bollinger

Dealt with admission policy by University of Michigan School of Law -Court ruled policy constitutional

Hughes v. Oklahoma

Dealt with state law prohibiting bringing fishing bait into the state, thus violating Commerce Clause -State law overruled and declared unconstitutional -No legitimate state interest

Maine v. Taylor

Dealt with state law prohibiting bringing fishing bait into the state, thus violating Commerce Clause -State law upheld -Was a legitimate state interest of protecting its fishing industry and could interfere with Commerce Clause to protect that industry b/c of the economic significance and it did accomplish the desired effect w/o too much of a burden on interstate commerce

Gratz v. Bollinger

Dealt with the University of Michigan's undergraduate admissions policy -Court ruled policy UNconstitutional

Answer

Defendant response to the complaint filed by the plaintiff within a statutory time period (20 days)

Schuette v. Coalition to Defend Affirmative Action

Defends Affirmative Action

Procedural Law

Define the procedural means through which violations of rights and duties are remedied -The "how to of the law" -i.e. the steps you go through in the prosecution and trial after committing a crime

Howey Test [SEC v. W.J. Howey]

Defined Security => 1. An investment of money 2. into a common enterprise AND 3. with the expectations of profits 4. to be generated primarily by someone else

MG Bldg. Materials v. Moses Lopez Custom Homes, Inc

Defines Intent under Texas Law --An expression of the terms (of the contract) with sufficient certainty so that there is no doubt regarding the parties' intentions

Administrative Procedures Act (APA)

Defines procedural rules and formalities for all federal agencies --Rule book for administrative agencies --Passed to make the organizational structure of agencies more uniform

Substantive Law

Defines rights and duties -"meat" or "heart" of the law

Procedural Due Process

Defines the procedural means to enforce rights established by substantive law -"How to" of the law

Enabling Statute

Defines the purpose of the agency [Birth Certificate] --Empowers the Agency to create rules and regulations --Gives great flexibility by using broad terms --Can be made by Executive Order (i.e. Nixon created EPA, Bush created Dept. of Homeland Security)

Intent

Definite intent to be bound by contract -Clear manifestation of intent -Would a reasonable person have viewed the offer as intent to be bound?

Substituted Service

Delivery of summons to an approved substituted other than the Defendant

Who regulates the meat industry?

Department of Agriculture

Criminal Sanctions

Department of Justice --Antitrust Division is the only one that can bring criminal cases --Penalties: 1) Individuals - 3 yrs, and/or $350,000 2) Corporations - $10 million

FDA is under what Department?

Dept. of Health and Human Services --BUT meat is still under the Dept. of Agriculture

Civil Law

Designed to compensate individuals for wrongs suffered -Purpose: reimbursement -Comes from common AND statutory law -Preponderance of the evidence, morel likely than not

Separation of Powers

Designed to control the use of the powers granted by the states to the federal gov't

Sherman Antitrust Act (1890)

Designed to prevent and punish anticompetitive practices --Essentially outlaws trusts in the US and empowers the federal gov't to break up existing trusts 1) Prevents restrain of trade (makes it illegal) 2) Prevents Monopolization (made a felony) --Does NOT include any defenses

Criminal Law

Designed to protect society from activities that upset social order by preventing crime -Punishes criminals -Exclusively statutory law -Beyond a reasonable doubt (higher than civil burden of proof)

Punitive Damages

Designed to punish the defendant/torfeasor awarded for: 1) Gross negligence OR 2) Willful an wanted disregard for safety

National Industrial Recovery Act (NIRA)

Designed to stabilize falling prices and deter cut-throat competition --The cornerstone of the New Deal --Used legislative power delegated from Congress --Challenged by Schechter Poultry Corp v. U.S.

Gibbons v. Ogden

Determined that the Commerce Clause allowed Congress to legislate with respect to all "commerce which concerns more states than one" -Issue: could NY grant licenses to boats that traveled between the 2 states -Court noted between Interstate and Intrastate Commerce ---Interstate must concern more than one state

B.L. Nelson & Associates, Inc. v. City of Argyle

Distinguishes between Executory and Executed Contracts: --Executed Contracts exist where nothing remains to be done by either party --Executory Contract (Partially Executed Contract) is one which is still unperformed by both parties or one with respect to which something still remains to be done on both sides

Ferrous Products Co v. Gulf State Trading Co.

Distinguishes between Implied-in-fact and Implied-in-law --Implied-in-fact = Merely a tacit promise --Implied-in-law = Neither the words nor the conduct of the party involved are promissory in form or justify an inference of a promise --Quasi-contractual Obligation = one made/created by law (Judge) for reasons of justice without any expression of assent and sometimes even against a clear expression of dissent

Garcetti et al v. Ceballos

Distinguishes between official and private speech -Public employees' speech is NOT as protected as other citizens, when and only when it is work-related -Result: gov't entity has broader discretion to limit speech of its employees in their official duties and responsibilities

Security Agreement

Document creating the Security Interest in Collateral

Deregulation

Doing away with governmental regulation --Idea is that Business is better off without the gov't regulation --More popular under Republican Administration

Articles of Confederation

Domination by the states and very weak central/national gov't --> Chaotic Period

Kefauver-Harris Amendments (1962)

Drug has to be safe before it can be approved by FDA --Also still had to be EFFECTIVE --> Greater drug control (development, testing, etc.)

Reichert v. State ex rel McCulloch

Due process requires recusal when the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable -Judges should step down when there is a probability of actual bias

Duty

Duty of Care --Arises when a person forsees that conduct would create unreasonable risk of harm to others --i,e, Target shooting in rural v. urban area

Duty of Care in Products Liability

Duty owed to all persons within foreseeable zone of danger --Buyer --Buyer's household --Innocent bystanders

An illusory contract is: A) A valid contract B) A void contract C) A voidable contract D) An unenforceable contract E) No real commitment to contract

Defenses to trespass include all of the following: A) A trespasser enters the property to assist a non-trespasser who is in danger B) A trespasser enters the property to assist even a trespasser who is in danger C) A trespasser enters the property and improves the property D) A trespasser enters the property to save the property from danger E) A, B, and D but NOT C

Enforcement of the law leads to: A) Predictability B) Treating everyone uniformly C) Astrological wonder D) Stability E) A and D

Federal Law includes all of the following except: A) Congressional, statutory law B) Executive Orders from the President C) Treaties D) A law of the Environmental Protection Agency of the U.S. E) All of the above are examples of Federal laws

Fred and Barney have a car wreck. Barney feels that Fred did not yield the right of way and demands that Fred pay the damages. Fred disagrees. Barney sues Fred. What type of law is involved? A) Civil B) Criminal C) Public D) Private E) A and D

Herman is a drug dealer and is charged by the U.S. Prosecutor with drug trafficking. What type of law is involved? A) Criminal B) Civil C) Public D) Private E) A and C

If you sell your herd of cows at a normal cattle auction and there are several bids on your cattle, you are: A) An offeror B) An offeree C) Involved in a without recourse sale D) Involved in a with reserve sale E) B and D

Judge-made law: A) Is common law B) Utilizes precedent and the stare decisis doctrine C) Is also called statutory law D) All of the above E) A and B

Judicial Review was created by: A) The wording of the Constitution B) The Articles of Confederation C) The U.S. Supreme Court D) Marbury v. Madison E) C and D

Junior enters into a contract to buy a car with Sleezy Sam's Used Cars when he is 16 years old. If he takes the car back to Sleezy Sam's which is true? A) Junior has disaffirmed the contract B) Junior has to pay the restitution that he can pay, if any C) Sleezy Sam can legally demand that Junior continues to pay the contract D) Sleezy Sam can ratify the contract and stop Junior's action E) A and B

Law is: A) An abstract term B) Always clear, specific, and definite C) A collection of rules and regulations and the enforcement thereof D) A waste of time E) A and C

Lucy sues Ethel for breaking her food processor. What type of damages can Lucy expect to receive if she wins the lawsuit? A) Putting Ethel in jail B) Legal damages C) Equitable damages D) Money E) B and D

Murdering your roommate is a violation of what type of law? A) Statutory B) State C) Criminal D) Public E) All of the above

You are at a party and Herman gets very drunk. You try to take his keys away from him so that he will not drive home drunk. To get the keys away from Herman you hold him down and make him give you the keys by force. Herman, however, is not hurt. Once he sobers up, Herman sues you for Assault, Batter, and False Imprisonment. Which of the following is correct about this situation? A) Herman wins b/c you did do those things B) Herman cannot win under any circumstances b/c you had proper motives C) Herman wins if you acted unreasonably D) You win if the court finds that you were privileged in your actions E) C and D

***In Texas, if a judge signs an order authorizing substituted service, then service can be obtained by: A) Serving the citation to anyone at the defendant's residence over the age of 14 years of age B) Nailing the citation to the front door of the defendant's residence C) Publishing the notice in the defendant's hometown newspaper D) Utilizing long arm jurisdiction statutes E) A, B, and C (NOT D)

***In rem jurisdiction is: A) Using the subject matter of the lawsuit to obtain jurisdiction in a case B) A means of obtaining territorial jurisdiction C) A means of obtaining personal jurisdiction D) Using any property to obtain jurisdiction in a case E) A and B

1) Where can little Johnny work if he is 15 under the Fair Labor Standards Act? A) For his parents in the family business B) At a construction sire driving heavy equipment C) At a fast food eating establishment if you stay away from the deep fryers D) At a shooting range setting the targets for the shooters E) A and C

11) What state(s) have Off-Duty Conduct statutes? A) Texas B) North Dakota C) New York D) Colorado E) B, C, and D

12) Comparable Worth A) Is an argument that equal pay should extend to workers that are doing different jobs but jobs that have a comparable worth to the business B) Statutory Law in 35 states C) Only adopted by common law and in just a few states in the US D) Just a theory and is not the law in the US E) A and D

13) The only real positive union gain prior to the Great Depression in 1929 was the: A) Haymarket Riot of 1886 B) Sherman Act of 1890 C) Pullman Strike of 1894 D) Homestead Steel Strike E) Immigration Act of 1924

13) Which of the following is/are an example of a protected class under the Civil Rights Act of 1964? A) Two Latino employees speaking Spanish at work during their break who are fired for doing so because they are Latino B) Firing a woman because she is pregnant C) Firing a man because he has a sex change D) Firing an African American female because he was arrested for theft E) A and B

14) Which of the following is/are example(s) of areas that have been added to the 5 categories that are protected classes under the Civil Rights Act of 1964? A) Color B) Sexual protection C) Pregnancy D) Sexual harassment E) C and D only

16) Mandatory topics of good faith bargaining include all of the following except: A) Pension B) Seniority C) Subcontracting D) Closing pants E) All of the above are mandatory

17) Assume you are right handed and that you cut off your finger. Under workers compensation law in Texas, what is the most valuable finger on your right hand? A) Little finger B) Ring finger C) Middle finger D) Index finger E) Thumb

19) Under which type of discrimination do you have to prove intent to discriminate? A) Disparate Treatment B) Disparate Impact C) Differential Treatment D) A and B E) A and C

20) Affirmative Action requires A) Quota systems B) Requiring an employer to hire unqualified people C) Requiring an employer to always hire people in the protected class D) All of the above E) None

3) The Rehabilitation Act gave us which of the following? A) Curb cuts in sidewalks B) Hire the handicapped programs C) Affirmative Action D) Handicapped parking E) All of the above

3) The labor law that prohibited management from obtaining injunctions against labor disputes was/were: A) Norris LaGuardia B) The Anti-Injunction Act C) Wagner D) The National Labor Relations Act E) A and B

5) If the labor representative calls OSHA and reports safety violations and even goes so far as to point those violations out to the OSHA inspectors when they arrive, what can the employer do to the worker for reporting the OSHA violations? A) Fire hum/her B) Reduce his/her pay C) Demote him/her to a lower job D) Cancel his/her employment benefits E) Nothing

6) Which of the following statements about drug testing by your employer is/are true? A) An employer can do random drug tests on any employee for any reason B) An employer can do a drug test on the employees involved in an accident at work C) An employer can only do a drug test with the employees permission D) An employer can do an announced drug test for everyone if the drug test is far enough in the future to give the employee the time to get any illegal drugs out of their system E) B and D

8) Little Johnny is 14, where can he work outside of his parents own business under the Fair Labor Standards Act? A) In the acting profession B) As a paperboy C) Some farming situations D) As an ocean lifeguard for the state of California where he risks his life daily E) A, B, and C

9) When it comes to privacy in the workplace what is an example of what the employer can do? A) Search your desk with good cause and if required with a search warrant B) Do random drug tests if you agrees to that as a condition of your employment C) Monitor your emails D) Video tape you in the dressing room changing into your uniform E) A, B, and C only

A Peremptory Challenge is: A) A challenge to a prospective juror that takes little or no reason B) Limited to a certain number of challenges C) Only used in criminal cases D) Only used in civil cases E) A and B

FTC v. Superior Court Trial Lawyers Assn: A) Dealt with horizontal price discrimination B) Dealt with vertical price discrimination C) Issued a decision by the per se rule with the exception that horizontal price discrimination is allowed if it is the only way to do it D) Issued a decision by the rule of reason with the exception that horizontal price discrimination is allowed if it is the only way to do it E) A and C

What are the requirements of the Vertical Restraint Guidelines? A) The seller has to have market power in the tying product B) The tied product and the tying product must be separate C) There must be substantial adverse effect on the tied product market D) The consumer must be harmed by the action E) Only A, B, and C are required

E) The seller has to have market power in the tying product The tied product and the tying product must be separate There must be substantial adverse effect on the tied product market

9) What are the penalties for violation of the '34 Act?

E) 10 years in prison & $10,000 fine

10) The Age Discrimination in Employment Act and its subsequent amendments protects workers who are: A) 40-65 B) 40-70 C) 40-75 D) 40-80 E) 40 and above

E) 40 and above

Reverse Incorporation uses what amendments? A) 1st, 4th, 5th B) 1st, 14th, 5th C) 1st, 2nd, 3rd D) 4th and 5th E) 5th and 14th

E) 5th and 14th

2) Which of the following are currently required by the OPA? A) Every oil tanker must have an oil cleanup contingency plan in the event of an oil spill B) A certificate to be allowed to enter the US from the US Coast Guard C) Proof that the ship is a double hulled ship D) A one million dollar deposit in a bank in the US specified by the EPA E) A and B

E) A and B

14) Which of the following true about a rural homestead? A) The claimed property can be in more than one parcel B) Is limited to 200 acres for a single adult C) The Debtor gets to designate the exempt property D) A, B, and C E) A and C only

E) A and C only

17) What property can a landlord NOT take under a proper Landlord's Lien? A) The shirt off your back B) Your TV C) Your video game set D) Family pictures E) A and D

E) A and D

3) Disclosure must be made under the Truth in Lending Act if A) The amount financed is more than $25,000 B) There are more than 4 payments C) In certain real estate loans D) A and C E) A, B and C

E) A, B and C

5) Under the Fair Credit Reporting Act, who is responsible for incorrect information being included in your credit report? A) The Credit Reporting Company B) The company that incorrectly reported the information C) Any company that makes use of the credit report of another improperly D) A and C only E) A, B and C

E) A, B and C

19) In air pollution, a state is subdivided into A) RACT B) BACT C) BPCT D) SIP E) ACQR

E) ACQR

6. Which of the following is true about limited liability companies? A) they give all of their owners limited liability B) they are much easier to operate than the corporate form C) they have flexibility in taxation D) they have flexibility in management E) all of the above

E) ALL

10) A Mechanic's, Contractor's, or Materialman's Lien covers which of the following types of situations where you do not pay for the actions? A) Repairs on your home such as when a new heating system is installed B) Little Johnny cutting the grass C) Installation of a swimming pool D) A and C E) All of the above

E) All of the above

10) If Carnival Cruise Lines dumps the trash hold on the ship into the ocean, what are the penalties that could be assessed for that dumping of trash? A) Injunction B) Fine of $50,000 C) Imprisonment for up to 1 year D) B and C E) All of the above

E) All of the above

2) The Equal Credit Opportunity Act applies to A) Race, color, religion, sex, and national origin B) Type of income received including welfare C) Marital status in Texas D) Age E) All of the above

E) All of the above

6) Proxy Solicitation is:

E) Allowing someone else to vote your shares & Highly regulated by the '34 Act

5) Who is liable under the Comprehensive Environmental Response, Compensation, and Liability Act? A) Owner of the land at the time the waste was deposited on the land B) Generator of the hazardous waste C) Operator of the land at the time the hazardous is discovered D) Owner of the land at the time the waste is discovered E) Any of the above are liable

E) Any of the above are liable

8) The Fair Credit Reporting Act allows a Consumer's Credit Report to be used by A) Employers B) Consumers when requested by a written request by the Consumer C) By court order D) All of the above E) B and C only

E) B and C only --NOT employers

2) What type of securities are debt obligations of the corporation?

E) Bonds, Debentures, & Equipment trust bonds --NOT stock

17) Which of the following is/are NOT covered by the EPA but probably will be in the future? A) Mobile point sources B) Toxic substances C) Indoor air pollution D) Urban runoff E) C and D

E) C and D

Price Discrimination is handled by what law(s)? A) Sherman B) Clayton C) FTC D) Robinson-Patman E) B and D

E) Clayton & Robinson-Patman

If the 2 totally unrelated companies want to merge this would be what type of merger? A) Horizontal B) Vertical C) Product extension merger D) Geographic extension merger E) Conglomerate merger

E) Conglomerate merger

18. If you want to create a separate legal entity, which form(s) of businesses entities do so? A) sole-proprietorship B) partnership C) corporation D) limited liability company E) c and d

E) Corporation & LLC

***Which Texas appellate court is not a true appellate court in that the trial is a retrial of the case? A) County Court B) County Court at Law C) District Court D) All of the above E) A and B only

E) County Court and County Court at Law

7) What are the legal duties of the Director and Managers/Officers to the owners of the corporation?

E) Duty of Care and diligence & Fiduciary Duty

***A majority opinion: A) Is an opinion agreeing with the majority opinion result but for different things B) Establishes precedent C) Is an opinion disagreeing with the majority D) Is an opinion by most of the judges/justices E) B and D

E) Establishes precedent, AND is the opinion of most of the judges

3) An example of an independent agency is/are:

E) FTC, NLRB, SEC, and FCC

Federal Hazardous Substances Act (FHSA)

Requires warning labels on certain hazardous toys

The US merger guidelines can apply to: A) Horizontal competitors B) Vertical competitors C) Conglomerate mergers D) Potential competitors E) All of the above

E) Horizontal competitors, Vertical competitors, Conglomerate mergers & Potential competitors

5. Which of the following are true about a sole-proprietorship? A) it is the oldest form of business entity B) it is the simplest form of business entity C) there are no formalities to creating it D) it can last forever E) a, b and c

E) It is the oldest form of business entity -It is the simplest form of business entity -There are no formalities to creating it --BUT it can NOT last forever

2. Which of the following is/are taxed like a partnership even thought that entity is not a partnership? A) Limited Liability Company B) S Corporation C) Closely Held Corporation D) Limited Partnership E) a and b

E) LLC & S Corporation

14. If you are creating a partnership which of the following items MUST be in the partnership agreement? A) relation of the partners to each other B) responsibilities of the parnters C) duration of the partnership D) how are the profits going to be split E) none of the above

E) None

10) Which of the following is NOT a type of enforcement by a regulatory agency?

E) None --Subpoena, Self-reporting, Direct observation, and Performing tests & inspections are all types of enforcement powers of regulatory agencies

***How did the representatives to the Constitutional Convention deal with the issue of who could vote? A) Set the age requirement as 21 B) Required citizens to own land to vote C) Allowed any white person to vote D) All of the above E) None

E) None ***

5) Who can be liable under 'Short-Swing' Profits?

E) Officers, Directors, 10% or > shareholders, & Managers

What two cases were used to show the power of the Commerce Clause during the Civil Rights movement of the 1960s? A) Ollie's BBQ and Heart of Atlanta B) Plessy and Brown C) Katzenbach and Heart of Atlanta D) NLRB v. Jones and Wickard v. Filburn E) A and C

E) Ollie's BBQ/Katzenbach and Heart of Atlanta

10. Who elects the board of directors in a corporation? A) owners B) officers C) managers D) shareholders E) a and d

E) Owners & Shareholders

Quasi in rem jurisdiction: A) Probably doesn't exist anymore B) Is used to obtain territorial jurisdiction due to property of someone that is not necessarily the subject matter of the lawsuit being located in the court's physical jurisdiction C) Is used to obtain personal jurisdiction due to the subject matter of the lawsuit being in the court's physical jurisdiction D) All of the above E) A and B only

E) Probably doesn't exist anymore -AND Is used to obtain territorial jurisdiction due to property of someone that is not necessarily the subject matter of the lawsuit being located in the court's physical jurisdiction

2) What type of regulatory rules do the courts give the closest scrutiny?

E) Procedural Rules & Regulations

Which of the following is/are exempt from the Anti-Trust Laws discussed in class? A) Public transportation B) Labor unions C) Insurance and other state regulated industries D) Certain agricultural organizations E) All of the above

E) Public transportation, Labor unions, Insurance, & Certain agricultural orgainzations

12. Which of the following types of businesses entities have/has a limited on the type of owners they can have? A) limited liability company B) partnership C) S corporation D) professional corporation E) c and d

E) S Corporation & Professional Corporation

14) Which of the following federal regulatory agencies was/were created during the Great Depression and the New Deal Era?

E) SEC & NLRB --NOT FDA or FTC

***Which Texas court(s) was/were created by the Texas Legislature? A) Municipal Court B) Small Claims Court C) Justice of the Peace Court D) County Court at Law E) B and D

E) Small Claims Court and County Court at Law

***Which introductory, lowest level Texas trial court can hear civil law? A) Municipal Court B) Small Claims Court C) Justice of the Peace Court D) All of the above E) B and C

E) Small Claims Court and Justice of the Peace Court

13) What was/were the historical reason(s) for the passage of the Pure Food and Drug Act of 1906?

E) Spanish American War & "The Jungle"

15) What should be included in the Prospectus?

E) Terms of the Security & Independently audited Financial Statements

11) What countries of the world generally use GAAP?

E) The US, Germany, France, and Japan

12) When does the Business Judgment Rule protect the corporate directors or officers and managers?

E) The action taken was based on an informed decision & There was a rational basis for the decision

16) Which of the following statements best describes the procedures under the Clean Water Act? A) The federal gov't sets and enforces the standards B) The state gov't sets and enforces the standards C) The federal gov't sets the standards, the state gov'ts enforce the standards D) The state gov't sets the standards, the federal gov'ts enforce the standards, and if they do not, the state gov't enforces them E) The federal gov't sets the standards, the state gov'ts enforce the standards, and if they do not, the federal gov't enforces them

E) The federal gov't sets the standards, the state gov'ts enforce the standards, and if they do not, the federal gov't enforces them

19) In Texas, what is the maximum amount of exemption that a Consumer can claim for a retirement account? A) $30,000 if the debtor is single B) $60,000 if the debtor is married or head of a family C) $90,000 D) $120,000 E) There is no maximum limit

E) There is no maximum limit

Horizontal Exchange of Information is subject to a high burden rule. Therefore, one should not exchange info if: A) They discuss price B) They discuss the options on shipment of the product C) They discuss the options on shipment of the product D) They hide the fact that they are sharing the info E) A and D

E) They discuss price & Hide the fact that they are sharing the info

3) The Insider Trading Sanctions Act established

E) Treble damages in insider trading & Liability for aiders and abettors in Insider Trading

What is a type of justification to price discrimination: A) You are simply meeting the competition's price B) Product is out of season C) Volume discount D) Cost justification E) All of the above

E) You are simply meeting the competition's price, Product is out of season, Volume discount & Cost justification

15. Which type(s) of businesses cannot be a LLC? A) banks that are insured by the FDIC B) insurance companies C) car dealerships D) resturarants E) a and b

E) banks that are insured by the FDIC & insurance companies

Concurrent Conditions

Each party's absolute duty to perform is conditioned on the other party's absolute duty to perform --Parties are to simultaneously perform duties

Caperton v. Massey Coal Company

Elected judges should not rule on cases involving their major backers

EFTA

Electronic Funds Transfer Act --Provide a basic framework establishing the rights, liabilities, and responsibilities of participants in the electronic transfer systems -- --377

Meritor Savings Bank v. Vinson

Employees can have a claim for environmental sexual harassment --Where the sexual harassment is pervasive enough in nature in the environment --i.e. Sexual comments, jokes, innuendoes, sexually oriented pics

OSHA Act of 1970

Employers are required to provide employees a workplace that is free from hazards causing or likely to cause Death or Serious bodily injury --Employers HAVE to report injuries to OSHA --OSHA must have an Administrative Warrant (super easy to get and most employers do NOT question the warrant) --Employees can NOT be penalized for revealing OSHA violations

Employer Retaliation

Employers can NOT punish or fire employees for bringing complaints

Time requirements...

End of Chap 13

EPA

Environmental Protection Agency --Sets specific standards

EPA

Environmental Protection Agency --Social Era --Created by Nixon Administration

ECOA

Equal Credit Opportunity Act --To stop discrimination in the issuance of credit due to Race, Color, Religion, Sex, National origin, Marital status (except in Texas) ,Type of income

EEOC

Equal Employment Opportunity Commission --Enforces Civil Rights Act --Civil Rights Division of the Texas Workforce Commission --In Texas, any kind of workplace discrimination falls under EEOC

EEOC

Equal Employment Opportunity Commission --Social Era

14th Amendment

Equal Protection -Applies most of the Bill of Rights to the States -Due Process and equal protection of the law (1st amendment), regardless of race, gender, etc. -Extended citizenship and rights to African Americans -Applies to the National Gov't due to 5th Amendment (Reverse Incorporation) -Gov't can treat different groups differently if distinction is logical and rationally related to a valid objection ---- i.e. 21 years old drinking age

Reverse Incorporation

Equal protection under the 14th Amendment applies to the National gov't as well as state gov'ts b/c of the 5th Amendment

Equity

Equitable remedies -Purpose: avoid unjust results from strictly following common law -i.e. injunction -Usually a court order to do or not do something -Only available if legal remedies are not sufficient

Marbury v. Madison

Established Judicial Review

Baroid Equipment, Inc. v. Odeco Drilling, Inc.

Established Texas' elements of a contract: 1) Offer 2) Acceptance 3) Meeting of the minds 4) Each party must consent to the terms 5) If it must be in writing, it must be executed and delivered with the intent that it be mutual and binding as determined by the objective standard**

Parker Doctrine

Established by the Supreme Court exempting actions by the state gov't if the state clearly articulates and actively supervises the policy behind its actions

Marine Protection, Research, and Sanctuaries Act of 1972

Established marine sanctuaries at sea & requires a permit to dump wastes into ocean --aka Ocean Dumping Act --$50,000 fine & imprisonment up to 1 year

MacPhearson v. Buick

Established products liability based on Negligence -Manufacturer of a finished product is liable to purchase if: a) Negligently put product on the market b) In a defective condition c) Without inspection d) Knowing the purchaser would not make an inspection e) It reached the consumer in the same condition it left the manufacturer f) Causing harm to the consumer

McCulloch v. Maryland

Established the Necessary and Proper Clause -Gave the national gov't the "inherent power" to operate business without being taxed by the states -Greatly expanded the power of the National Gov't over the states

Dow Chemical Co v. U.S.

Established the Open Field Doctrine --Dow Chemical refused EPA's inspection of their plant so EPA hired commercial arial photographer take take pics of the plant --Court held it to be "Open Field"

Lanham

Establishes a nationwide registration system for trademarks

Prima Facie

Evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial --Evidence of ownership after 5 years registered

Hearsay

Evidence testimony that is not firsthand knowledge -Generally not permissible in court -Allowed in depositions

Exclusionary Rule

Evidence that is seized improperly must be excluded from trial -Does apply to business and businesses do have right against unreasonable searches and seizure, but is not as protect as an individual's ---Administrative warrant (easily obtained)

Youngstown Sheet & Tube Co. v. Sawyer

Example of Supreme Court's check on Executive Branch -Steel mill workers threatened to go on strike -Truman issued an Executive Order as Commander-in-chief to seize the mills and keep them operating -Court held that the seizure was UNCONSTITUTIONAL, and not within the powers of the President

Scope of NLRA/Wagner coverage

Excludes: 1) Gov't employers (state, local & federal) 2) Railroad workers (Transportation industry -includes airline) 3) Domestic servants (maids, butlers) 4) Individuals employed by parents/spouse 5) Agriculture laborers 6) Supervisors/Management 7) Independent contractors (i.e. UPS & FedEx drivers) 8) Company Unions run by Employer

2) On what legal authority does the federal gov't require bidders on gov't contracts to formulate and carry out affirmative action plans?

Executive Order 11246

Race Discrimination

Executive Order 11246: --Mandated Affirmative Action in employment by companies holding fairly significant gov't contracts ----22% of American civilian work force --Allegations of reverse discrimination (Courts do NOT like quota systems)

Capper-Volstead Act of 1992

Exempts persons engaged in the production of agricultural products [including Agricultural Cooperatives or Associations and Fisheries] from Antitrust Law

American Chamber of Horrors

Exhibit set up by FDA showing several products that were legal under 1906 Law, but still caused numerous problems

Texas Statutory definition of Libel

Expression in written or other graphic form tends to: 1) Blacken memory of dead 2) Tends to injure reputation exposing that person to: --Public hatred --Contempt or ridicule --Financial injury --Impeach person's honesty, integrity, virtue, or reputation --Publish the natural defects of anyone exposing them to public hatred, ridicule, or financial injury

Why do we have Tort Law? What is the reason? What are the goals of Tort Law?

Expression of moral principle 1) Justice 2) Ethical retribution 3) Ethical compensation --Regime of prevention --Social Insurance

Hopwood v. Texas

Extended legal proceedings -Only applied in the 5th Circuit -UT Law school ranked applicants and had a quota system to increase minority enrollment -Hopwood was a white woman skipped over for a minority to fill the quota -Court ruled Univ. could NOT use quota for affirmative action --> Top 10% Rule

Hill v. Western Union Telegraph

Extremely drunk employee behind counter told lady customer "If you come back here and let me love and pet you, I'll fix your clock" -> sued for ASSAULT --Lost at appellate level b/c he did not act within scope of his employment

Genetically Engineered Foods

FDA does NOT require manufacturers to disclose that food has been bioengineered

Kefauver-Harris Amendment of 1962

FDA had to approve drug based on effectiveness -- Pharmaceutical companies must apply for FDA approval of clinical testing of drugs. Strict on: 1) Development 2) Testing 3) Adoption or approval of new drugs

Medical Devices Amendment of 1976

FDA has jurisdiction over medical devices --i.e. silicone breast implants rupturing into body (FDA ignored warning signs for 12 years)

Bill of Rights

First 10 amendments to the Constitution guaranteeing personal rights and freedoms as well as state's rights -Used to appease the Anti-Federalists

mid-1920s

First Anti-Immigration Law passed --Helped American Labor

Alignment of Financial Interests

First approach to addressing the principal-gannet problem in corporate governance aligning the financial interests of the officers and the board members with those of the shareholders

Labeling Standards

Requires warning labels on products

Breach

Failure to Exercise Care --Reasonable Person Test --Higher standard of care required if have or claim to have special knowledge or skill (i.e. Doctors, lawyers, professionals)

FCRA

Fair Credit Reporting Act --To insure that the banks and other lending institutions have accurate credit info. which is supplied to them by credit reporting agencies --Enforced by FTC

Restitution

Fair value -i.e. for damages made to the car

Slander of Quality

False statement -Aka Trade Libel

False Advertising

False statement about YOUR product

Slander of Title

False statement about the ownership of property

Rural Homestead

Family can choose 200 acres of land --Single adult can choose 100 acres of land --Can be in more than one parcel --Includes all improvements --Debtor designates the exempt property

Shay's Rebellion

Farmer rebellion -- were losing farms to the banks -Neither central or state gov'ts could raise militia to stop Shay -Eventually stopped by a privately paid force

National Labor Relation Board

Federal Administrative Agency to administer labor laws --Appointed by the President

FCBA

Federal Credit Billing Act --TILA Part D --Disclosure Law concerning Credit Cards every 6 months --Allows consumers to object to inaccurate billing within 60 days of statement (IN WRITING)

FDCPA

Federal Debt Collection Protection Act --Directed at collection agencies, guidelines for collecting debt --Provides protection for Consumer/Debtor

FIFRA

Federal Insecticide, Fungicide, and Rodenticide Act --Power over pesticides and related chemicals --Must be registered with EPA before they can be sold Amended by Food Quality Protection Act of 1996 --Installed reasonable certainty of no harm standard --Requires sellers of high-risk pesticides to provide brochures to public on the use of the pesticide

FTC

Federal Trade Commission --Prevent unfair or deceptive advertising --Historical Era

Clean Water Act

Federal Water Pollution Control Act of 1948

What is the highest Duty recognized by Law?

Fiduciary Duty (of Agent to Principal)

Chaplinsky v. NH

Fighting Words: words that by their very utterance inflict injury or tend to incite an immediate breach of the peace -Can be banned

Market for Executive Talent

Fighting to make the business (and therefore the stock) the best it can be helps the executives' reputation and is therefore in their own self interest

Atlantic Cement Rule

Figure in the cost of eliminating the nuisance compared with the benefit to the neighbors --First adopted by NY, other states followed --Made getting Permanent Injunction very difficult

How do you create a Limited Liability Company?

File Articles of Organization with the Secretary of State (aka Articles of Formation in TX)

Cross-Action

Filing by the defendant to bring a third party into the lawsuit

Declaratory Judgment Act

Filing for Patent Infringement 1) Patent should never have been granted 2) Patent has expired 3) Misuse of the patent 4) Fraud 5) Abandonment of Patent 6) Anti-trust violation

Dixon v. Love

Fines do not normally require a pre-determinative hearing

Horizontal Merger

Firms were competitors prior to the merger --i.e. Texaco and Getty

Corporate Governance

Formulating, overseeing and monitoring the corporate process to shape its strategic direction and performance, define its mission and scope, and assess its interactions with affected groups --Involves implementing the rights, responsibilities, and accountability of Shareholders, Board of Directors, and Managers

What is Corporate Governance?

Fair Use Doctrine

Four Prong Test: 1) Purpose & character of fair use 2) Nature of copyrighted work 3) Percentage of total used 4) Effect on value of the copyrighted work

1st Amendment

Freedom of speech, religion, press, and assembly

Drug Abuse Control Amendments of 1965

Gave FDA control over 1) Amphetamines 2) Barbiturates 3) Hallucinogens

Food, Drug, and Cosmetic Act of 1938

Gave new powers to the FDA: --Went after drugs (like Elixir Sulfanilamide) --Manufacturer had to prove drug was safe before sold --Can only be sold with FDA approval --Required Doctor's prescriptions

US v. General Dynamics (1974)

General Dynamics produced hard coal and wanted to acquire strip-mining soft coal company --Gov't sought to block merger b/c it would give them too much power --Merger allowed b/c: Coal was consistently losing market share in energy industry and no one else wanted to bother with strip-mining so they wouldn't be running anyone out of business

What are the differences between a General Partner and a Limited Partner?

General Partner has ALL liability while the Limited Partner is silent and takes NO part in any management action in the business, thereby maintaining limited liability

Texas Rules on Negligence Theory in Product's Liability

General Rule: the one who manufactures or supplies a product has a Duty of Reasonable Care to users, and to those in the foreseeable zone of danger of such a use, to prevent physical harm that he should reasonably foresee could result from the use of the product for its intended purpose. -The obligation of such a manufacturer/supplier is to exercise reasonable care to discover the dangerous propensities of the product and to warn those whom they should expect to use it -Privity is NOT required

Liability for Crimes

Generally Principals NOT liable for crimes UNLESS knew or should have known of criminal activity or due to criminal background of agent -Rapidly expanded to make employer more liable

What are the GAAP and who uses them?

Genrally Accepted Accounting Principles that allow people to compare companies with uniform financial statements -All US companies must use them

U.S. Policy

Give information because information is the key

Consent

Give permission -Expressed or implied, and go beyond level of consent -i.e. Sports

Gives automatic right for works created after Jan. 1, 1978

Business Electronic Corp v. Sharp Electronics Corp (1988)

Gives manufacturers the freedom to have wide control in selecting dealers to distribute their product\ --Firmly established RULE OF REASON unless: 1) Conspiracy can be shown to exist OR 2) Direct price-fixing involved --Absent price fixing, vertical market divisions are clearly Rule of Reason

What is the Williams Act?

Gives the SEC most of its control over takeovers --Makes it extremely difficult to do a hostile takeover

Williams Act of 1968

Gives the SEC most of its control over takeovers --i.e. Richard Gear's job in "Pretty Woman" --Part of the '34 Act --Makes it extremely difficult to do a hostile takeover --Purpose:

Security Interest

Gives the Secured Creditor claims in specified property of Debtor

What are the advantages to alternate dispute resolution?

Good alternative to Litigation which has problems: -Expensive -Lost productivity -Cost in human work time -Bias and prejudice against business -Public

Due Process

Gov't cannot deprive individual of life, liberty, or property without due process of law -National Gov't is 5th Amendment -State Gov't is 14th Amendment -Defined on a sliding scale depending on the magnitude of the interests at stake -2 types: 1) Substantive 2) Procedural

Tradable Permits System

Gov't decides optimal annual amount of environmental discharge of a particular emission --Permits are distributed to producers based on a percentage of their production or by auction --Permit allows holder to discharge a certain unit of an emission into the environment --For pollution above the permit amount, each producer must adopt emission control technology to eliminate the excess discharge Permits can be freely traded

Family Smoking Prevention and Tobacco Control Act of 1990

Greatly expanded the FDA's powers over tobacco --Gives FDA power to regulate advertising of cigarettes --Designed to be anti-smoking law --Outlaws flavored cigarettes --May stop new brands of tobacco b/c FDA approval is now required to sell new brands

U.S. v. Lopez

Gun-Free School Zones Act declared unconstitutional b/c it exceeded Congresses authority under the Interstate Commerce Clause -Concluded that Congress had 3 categories in the Commerce Clause to exercise its authority: 1) Use of the channels of interstate commerce 2) Instrumentalities of interstate commerce 3) Those activities having a substantial effect on interstate commerce -First case to limit the Commerce Clause

Molly McGuire Union

Has a history of using murder --In reality, it was outside businesses who hired people to infiltrate union and give it a bad name

Virginia v. Black

Hate speech: speech that occurs with intent of racial intimidation -KKK leader convicted of burning a cross and Virginia hate crime law was upheld -Colleges and Universities can limit hate speech by time, place, and manner of speech

US v. Suntar Roofing

Horizontal Price Fixing --Suntar Roofing and Roman's Roofing agreed to a customer allocation plan dividing roofing customers in Kansas City between them --Blatant violation of Sherman --PER SE Illegal

US v. Socony-Vacuum Oil Co.

Horizontal Price Fixing Case Law --RULING: Per Se violation

IBM v. US

IBM came up with a great machine that could store info and then print it back out (way ahead of its time) --Leased it to people but they HAD to buy the cards for it from IBM --Tying product = machine --Tied product = card --COURT RULING: IBM lost b/c of illegal Tying under RULE OF REASON

What are some of the examples of the different types of regulatory agencies?

ICC, SEC, FCC, FTC, NLRB, EPA, CPSC, EEOC, OSHA

Assault

INTENTIONAL act placing a person in fear or apprehension of immediate bodily harm or offensive contact -Fear can be legit even if threat cannot be carried out (i.e. unloaded gun, etc.)

Why is enforcement of a law important?

If a law is passed but is not enforced, then it ceases to serve any purpose and is useless -Enforcement leads to stability and predictability ----Criminals know what will happen to them, fear of enforcement encourages people to follow the law

NLRB v. MacKay Radio and Telegraph

If a union goes on strike, the employer is free to hire permanent or temporary replacement workers/striker replacements ["scabs"] for the striking workers

Comparative Negligence

If both parties are negligent, compare the negligence and assign percentages of negligence to the parties --Damages are reduced by percentage of a party's own negligence --50% Rule: If more than 50% negligent, there is no recovery --> liable ^^Used in Texas^^

Contributory Negligence

If both parties are negligent, there is no recovery --Any degree of negligence is sufficient

What is the market for corporate control? How does it address the Principal-Agenct problem in Corporate Governance?

If corp. is not functioning as profitable, then another group or corp. might try to take over control of the 'less profitable' company --Provides strong incentive for the Board to operate the company as efficiently as possible

Market for Corporate Control

Wildcat Strike

If one division of union goes out on strike without permission of the union --Now illegal

Federal Arbitration Act

If parties agree, all federal court cases are referred to arbitration -If you agree to arbitration, you MUST go (cannot change mind) -Shearson/American Express v. McMahon

Corporate Opportunity Doctrine

If the officer or director discovers a business opportunity he/she must first make it available to the corporation --One form of Fiduciary Loyalty owed by the officers and directors to the corporation

Ally Doctrine

If the secondary company is in cahoots with the primary company to break their workers' strike

Product Abuse

If you change the product, voids the warranty --i.e. putting monster tires on your truck

***Gambling Contract

If you share in the pot/take a cut, you are in violation of law -Don't have to pay it if illegal gambling ---i.e. Bingo, -BIG gray area to gambling laws in Texas -Bryan settled by Italians

Conversion

Illegal, wrongful taking of the property of another that places the property in the service of the trespasser --Civil side of theft --Can result in criminal charges

Immigration and Naturalization Service v. Chadha

Illustrates the functioning of the doctrine of separation of powers -Congress passed an immigration statute, and the President had signed it into law -Granted an administrative agency certain powers, but also included a provision for a legislative veto with majority vote -The legislative veto did NOT require presidential signature in order to be effective -Court ruled Act UNCONSTITUTIONAL b/c the Constitution requires presidential approval before an act of Congress can become law

Harrison v. Williams Dental Group, P.C.

Implied V. Express Contract --Texas case law: an express contract arises when its terms are stated by the parties --Texas case law refers to an implied contract as one that can arise from the acts and conduct of the parties

Nobility Homes (1977)

Implied Warranty of Merchantability [Texas Common Law] --Defines seller as "a person who sells or contracts to sell goods" --> That could mean anyone --If privity still allowed, then corporations would simply set up sham corporations to sell the goods they manufactured to avoid liability

Quasi Contract

Implied-in-law Contract -Not a true contract -"Sort of" a contract -Almost a contract -i.e. The judge bail you out when you're being taken advantage of (Swim's yardwork)

Where is the Federal Court of Appeals for Texas? Which one? How many are there?

In New Orleans -5th Circuit out of 13

Thurmond v. Wieser

In Texas, Silence is NOT normally Acceptance --Acceptance must be: 1) Unconditional 2) Unequivocal 3) Legally Communicated

Public Sector Unionism

In general, it is illegal for gov't workers to go on strike --Some states allow strikes by non-essential workers (i.e. Librarians)

What is the difference between arbitration and mediation?

In mediation, the 3rd party merely assists the settlement, In Arbitration, the Arbitrator makes the binding decision

Where is due process defined? What is a due process? What are the types of due process?

In the 5th (National) and 14th (State) Amendments -Gov't cannot deprive individual of life, liberty, or property without due process of law -Substantive Due Process: Content/meat of the law -Procedural Due Process: steps gov't uses to deprive someone of life, liberty, or property

Federal Law

Includes law from: -Constitution -Congress -President -Federal Regulatory Agencie

Consumer Product Safety Commission (CPSC)

Independent Regulatory Agency of 5 members appointed by the President for 7 staggered years --Act was the first federal regulation of product safety in the U.S. --What you have at home, what you take to school, and in a vehicle --Only deals with the CONSUMER side --Goal: prevent deaths, permanent injuries, and economic losses --Covered: children's toys, baby products, furniture, household chemicals

FTC v. Indiana Federation of Dentists (1986)

Indiana wouldn't let Dentists share info. --Hurt the consumer -->RULING: State can NOT outlaw Horizontal Exchange of Info

Trade Dress

Infringer steals the entire inherent distinctive look of a competitor --i.e. Two Pesos and Taco Cabana --i.e. Walmart case

Harm

Injury or Harm --Usually requires physical harm --May be enough to only have mental harm in limited proper situations

Mitigation of Damages

Innocent party must try to lessen damages --Prevents damages from increasing

What is the difference between an inside director and and outside director?

Inside Director has a stake in the company while an Outside Director has no self-interest in the company

What is Rule 10(b)? To whom does it apply? When? Defenses?

Insider Trading Rule, applies to any situation where misappropriation of material inside information for profit happens --Gov't Prosecutor has to PROVE that violator had insider information --More broad Rule --Can go after ANYONE over ANY time period who used insider info. --$10,000 fine and up to 10 years in prison

Intellectual Property

Intangible property created from ideas or though process of creator 1) Copyrights (Const. protected) 2) Patents (Const. protected) 3) Trademarks and service marks 4) Trade Names 5) Trade Secrets Very active in: --Ownership Rights --International Rights --Internet

Battery

Intentional act of PHYSICAL contact or offensive touching of someone else without his or her permission -Assault & Battery can occur together OR separately

Intentional Infliction of Mental Distress

Intentional conduct by a person that is so outrageous that creates severe mental or emotional distress in another -Outrageous, extreme, beyond decency

False Imprisonment

Intentional holding or detaining of a person within boundaries if the person is harmed by such detention

Product Market

Interchangeable products (can even be future or potential use) --Desire: Have enough producers so that one firm cannot affect the market for the products and avoid monopolies

Unfair Labor Practice (ULP)

Interferes with, restrains or coerces employees in the exercise of their rights to 1) Form labor unions AND 2) Engage in Collective Bargaining --ULP if employer refuses to bargain collectively with correct employee representative ------>Leads to Surface Bargaining

Substantial Governmental Interest Test

Intermediate protection of 14th Amendment -Involves gender or legitimacy

IWW

International Workers of the World --Socialist

Berne Convention 1989

International copyright established --NOT followed by China or E. Europe

What was the first agency created?

Interstate Commerce Commission (1887) [ICC] --Regulated Railroads --Justification: because the Railroads cross state lines, they fall under Interstate Commerce Clause

ICC

Interstate Commerce Commission [Created to regulate Railroads]

Invasion of Privacy

Invasion of a person's right to solitude, an unwarranted public exposure

Intentional Tort

Involves a DELIBERATE action resulting in a harm -Not necessarily with the intent to harm, just intent to do the action causing the harm

Standard Oil Co of Cali v. US

Issue: Did the largest gas seller in the US make exclusive-dealing contracts with independent stations in 7 western states that had the effect of restricting entry into the market? Did the contract restrict entry into the market? --RULING: Violation under Clayton Section 3 b/c competition was foreclosed in a substantial share of the relevant market

Datagate Inc v. Hewlett-Packard Co

Issue: Was having only one contract enough to be an antitrust violation? --RULING: Yes b/c it affected a substantial volume of commerce and sales

Kelo v. City of New London

Issue: was New London taking Kelo's land a public use? -Court rules that "public purpose" was to be defined broadly and allowed the city's actions -Court warned that States could pass and enforce stricter rules and many states have done so

Why is the Commerce Clause so important to the business world?

It allows the federal gov't to interfere with any business that involves interstate commerce (which is basically all business)

Why does quasi in rem jurisdiction probably not exist any more?

It has been combined with in rem jurisdiction -It was basically holding property hostage

How does the diversity of citizenship rule establish jurisdiction in the federal courts?

It provides a neutral forum in the Federal Court System for the resolution of disputes among citizens of different states so that a citizen of one state will not get "homered" by a court of another state

What court would a $1,000 civil suit go to?

JP Court -Justice George Boyett

White Primary

Jim Crow Law allowing only white citizens to vote in the Democratic Primary -Made unconstitutional in Smith v. Allwright

Mergers

Joining of 2 or more companies into one --Can be under Sherman OR the FTC 1) Vertical 2) Horizontal 3) Market Extension 4) Conglomerate/Diversification

What is jurisdiction and how does a court establish it? How does it compare to venue?

Jurisdiction is the power of a court to hear and decide certain types of cases -Court must have both subject matter and territorial jurisdiction -Venue determines which court with jurisdiction will hear the case

Voir Dire

Jury selection process where the litigants seek fair and impartial jurors -6 or 12 jurors with possible alternates -Conducted by Judge in Federal Court -Conducted by Attorneys in Texas

Instances where the Courts do NOT necessarily side with the Administrative Agencies

Labor Law (by the NLRB) --Agencies Went too far OR --Tried to pass a Substantive Rule as a Procedural or Regulation

Collective Bargaining Agreements

Labor contract covering the bargaining unit --Typically 3 year duration --Sets forth specific details of employment relationship during the period of the union-negotiated labor contract --Usually contains grievance procedures -->In return, union agrees to a "no strike clause" (unions tend to reject this) --Provides that employee can only be fired for "just cause"

Real Property

Land or anything permanently attached to the land (Real Estate)

Urban Homestead

Land used for a home or family or a single adult --10 acres and all the improvements thereon

Institutional Investors

Large, professionally-managed providers of capital --i.e. retirements funds, pension funds, insurance companies, mutual funds

Private Law

Law between individuals -- gov't is not involved

Administrative Law

Law created by the regulatory agencies -Each state can create Administrative Laws

Agency by Operation of Law

Law implies as Agency relationship --Rises out of necessity or emergency --i.e. Babysitting and child must be taken to ER - babysitter can sign for the hospital to save the child's life w/o consent of parents --i.e. Elder care - children are required to take care of parents or else it's elder neglect

Equal Pay Act [1963]

Law prohibits employers from paying men and women differently if job requires equal skill, effort, responsibility, and working condition

Implied-in-law Contracts

Law/Judge implied the contract

Legislative Law

Laws passed by the legislature, usually in the form of a statute or regulation -Constrain businesses' behavior -Most of the legal environment of business and regulatory role of the law -Can also be passed by state legislatures and municipal bodies -Aka Statutory Law

Derivative Actions

Lawsuit filed by shareholders against someone or something who has financially harmed the corporation IF and WHEN the Board of Directors has chosen not to file suit --Some states require that up to half of the shares be held by other shareholders --Can serve as check on behavior of corp. managers --Security-for-expense Bond required before Derivative Suit can be filed

Promise

Manifestation of intent to do or not do something -Not all promises are contracts (must have legal requirements)

Territorial Restraints

Manufacture tells retailer where they can sell product --i.e. distributorship --If sell outside the territory, grounds to revoke franchise

Federal Trade Commission v. Superior Court Trial Lawyers Assn. (1990) [SCTLA]

Lawyers demanded higher pay from Judges --Created the Superior Court Trial Lawyers Assn. acts like a Union but is NOT (b/c it would be illegal) --Went back to the judges and threatened not to do their court-appointed work unless they raised their prices --COURT RULING: Price Fixing is Per Se Illegal UNLESS there is NO other way to do it

Trespass to Land Theory

Legal action for any unauthorized physical intrusion or entry upon the land of another --No actual injury too the land must be proven Damages: --Cost of removal --Only recovery of losses already done --Injunction

Notice of Proposed Rule-Making

Legal authority with the description of the issues and subjects involved, given at least 30 days prior >Includes: ---Hearing dates ---Time ---Place ---Nature of the proceedings

Brief

Legal document submitted to the Appellate Court by the Appellant listing alleged errors of law that were committed by the trial court decision -Includes legal precedent to prove points of alleged errors

Privilege

Legal immunity from liability -i.e. Police can pull a gun and perform a search

Types of Defenses to Assault or Battery

Legal justification for the action of the alleged Tortfeasor 1) Consent 2) Privilege 3) Self-Defense

Legal Benefit

Legal right acquired by promise due to promise's legal detriment

Who/what creates Statutory Law?

Legislative bodies (including state, municipal, and other governmental bodies)

Rylands v. Fletcher

Liability without fault --Defendant found liable for reservoir flooding Plaintiff's mine, even though he had no knowledge of the mine

Strict Liability in Tort

Liability without fault --Limited to "Abnormal" or "Ultra-hazardous" activities, but not so unreasonable as to be prohibited altogether (i.e. keeping wild animals, blasting w/dynamite) --Expanded to food and drinks --Rylands v. Fletcher

Strict Liability

Liability without fault --NOT an absolute liability --Result: Caveat Emptor --> Caveat Veditor (let seller beware)

Strict Liability

Liability without fault -Reserved for abnormally dangerous situations --i.e. building explosions, wild animal pet, etc.

What is an LLLP?

Limited Liability Limited Partnership -Combines LLP and LP

Horizontal Exchange of Information

Limited Rule of Reason with High Burden: 1) Make it public and out in the open (i.e through press release) 2) NEVER discuss price

Printz v. U.S.

Limits Congress' use of the Commerce Clause -Declared the Brady Handgun Violence Prevention Act of 1993 in part to be unconstitutional -US gov't could not force state's chief law enforcement officers to do background checks on people who purchased guns b/c it violated States' sovereignty principle and not a proper use of Commerce or Necessary and Proper Clauses

Bankruptcy Chapter 7

Liquidation --Property seized by the Bankruptcy Judge --Property sold --Proceeds paid to Creditor's of the bankrupt/debtor

Forum shopping

Looking for the best court for the best monetary judgment

Trial Court

Lowest rung of the ladder in civil court -Live testimony -Jury or judge -Courts of record -6 in Texas, on 2 levels

Eastern States Retail Lumber Dealers Assn v. US

Lumber retailers turned in name of wholesalers who sold to the public to the Eastern States Retail Lumber Dealers Assn. who would then send the names to other retailers hoping they would boycott those wholesalers --RULING: Sherman prohibits such boycotts and it was PER SE ILLEGAL

McDonald v. City of Chicago

Made 2nd Amendment right to bear arms applicable to the states

Anticybersquatting Consumer Protection Act (1999)

Made registering someone else's trademark or famous person's name as an Internet domain name in bad faith, hoping to make a profit, a federal felony --i.e. Google against Chris Gillespie

Gitlow v. NY

Made the 1st amendment apply to the states -Birthed Doctrine of Incorporation -Gitlow -- socialist printed manifesto urging workers to overthrow the gov't ---Argument: right of due process under 14th amendment, same as 5th amendment --> state gov't had to grant same freedom of speech that federal gov't had to

Predatory Pricing

Major type of Price Discrimination where the manufacturer sells low in one geographic area to drive out competition in that area, then raises prices once the competition is gone from the market --Falls under Robinson-Patman & Sherman Act, Section 2 --Difficult to win: issue always becomes predatory or just aggressive competition? --Walmart is guilty of this BUT they do not change their prices once they drive other businesses out of business, so they can't be charged with predatory pricing

Affirm

Majority of appellate judges agree with lower court

Misbranded

Making false or misleading label claims in food & drugs --Can result in fines or jail time

Lockout

Management is threatening to strike on labor union --Aka "Forced Strike" --i.e. NBA did this at beginning of pre-season (when no one cared) until strike was settled

Manager-Managed LLC

Managers are agents for the members [Fiduciary Duty] --Managers may appoint officers to work within the limits of the Operating Agreement and Applicable state law --Members have Limited Liability --Members do NOT have personal liability for LLC debts, or debts of other members

How do market forces act to encourage producers and employers to respond to unsafe products? Under what circumstances are market forces inadequate guides to safety? What are the basic rationales for gov't intervention? Do the rationales correspond to "failures" of the market, or is there another underlying principle at work?

N/A

What are the different types of products liability? When do they apply?

N/A

Collective Bargaining

NLRA requires that the employer must bargain in "good faith" with duly elected employee rep. in 3 areas

Agency by Apparent Authority (Estoppel)

NO actual authority by the Agent --3rd party can bind the Principal by actions of the Principal through the Agent --Alleged Principal DOES have to know that Agent is acting on the alleged Principal's behalf --3rd party THINKS Agent reps. Principal -----i.e. ex-employee making an offer to the clients on behalf of employer that the employer did NOT agree to -> Valid offer if the employer (Principal) does not tell the clients (3rd party) that the ex-employee is no longer their rep. (Agent)

Clean Air Act - NAAQS

National Ambient Air Quality Standards --From the Clean Air Act

NLRB

National Labor Relations Board --Regulates labor-management relations in all industries --New Deal

NPDES

National Pollutant Discharge Elimination System --Aka Permit system --Expanded navigable waterways

NRDC

National Resources Defense Council --Citizens group relied upon by the EPA to pressure polluters

Federalism

National gov't is given powers by the constitution while reserving other powers to the states -Both national/federal gov't and state gov'ts can create law

5th Amendment

No person shall be compelled in any CRIMINAL case to be a witness against himself -Right against self-incrimination -Applies only to individuals, NOT corporations -Only in Criminal cases, NOT civil

Illusory Promise

No real commitment or contract -i.e. employees NORMALLY get Christmas bonus

No state involved in copyright, exclusively national gov't

Agency by Ratification

Non-Agent enters into an agreement --Contract is entered into by not-agent for benefit of alleged Principal WITHOUT real authority by the Principal --Can be by alleged Principal --i.e. buying a car for Swim w/o telling him, but he accepts it and reimburses after the fact

Appellee

Non-appealing party -file a response stating why the Appellant is incorrect

Commercial Speech

Non-political speech -Does not receive as much constitutional protection -i.e. Advertising

Agricultural Cooperative or Associations

Non-profit organizations that work to assist farmers by providing them with Loans, Price Supports, and a pool of mutually provided resources --Exempt by Clayton and Capper-Volstead Act of 1992

Insider Information

Nonpublic information obtained through your relationship with corporation (employee, lawyer, banker, janitor) --Profit can be tangible OR intangible (i.e. promise of sexual favors)

Garnishee

Not allowed to pay the debts of debtor out of that account nor release funds to the debtor --Banks

Limited Partner

Not allowed to take ANY mgmt. action in the business --Limited liability --If say ANYTHING in mgmt., take on unlimited liability

Summons

Notice of a lawsuit, consisting of the actual lawsuit and instructions to the defendant of how to answer the lawsuit -Aka Citation

NRC

Nuclear Regulatory Commission --License the construction of nuclear power plants --Sets standards for: ----Radioactivity in the environment ----Disposal of nuclear wastes ----Thermal pollution from nuclear power plants ----Emission from uranium mines and mills ----Disposal of nuclear wastes

Strict Liability

ONLY applies to unreasonably dangerous products that could cause Extreme Health or Safety Risks --Deals with manufacturing problems in unreasonably dangerous products: 1) Design Defects 2) Failing to exercise Due Care in manufacturing of the product creating those defects 3) Improper labeling

How is a contract discharged by impossibility? When is it not?

Objective Impossibility (It can't be done) discharges a contract --Subject Impossibility (I can't do it) does NOT discharge contract

Brown v. Board of Education

Overruled Plessy v. Ferguson and declared "Separate but Equal" unconstitutional

Secured Creditor

Owns a security interest --Can take the property back if the debtor does not pay for it --NOT Credit Cards

What part of TILA is FCBA under?

Part D

What part of TILA is Consumer Leasing under?

Part E

Unliquidated Debt

Party has no definite way of proving how much the other party owes 1) Debt must be truly in dispute

Social Insurance

Party in the best position to spread the loss of injury should pay

Lessor

Party offering the lease

Appellant

Party that appeals

Offeree

Party to whom the offer is made

Roth v. U.S.

Obscenity/Pornography defined as speech utterly without redeeming social importance -Test: was the dominant theme of the material as a whole appealing to the prurient (sexual) interest? -Difficult to understand and apply -Today obscenity is defined by the community standard, not the supreme court

OSHA

Occupational Safety and Health Administration --Social Era

Vertical Restraint of Trade

Occurs when 2 or more firms in the distribution chain enter into a contract or conspire to restrain trade --i.e. GM took over supplier

Horizontal Restraint of Trade

Occurs when businesses operate at SAME level and generally in same market (Competitors)

Revocation

Offeror takes back the offer PRIOR TO THE ACCEPTANCE by the offeree -Not effective until received by offeree -Irrevocable offer -- option contract

Brigham City v. Stuart

Officers have the right to enter a home with no warrant when they reasonably believe that an occupant is seriously injured or imminently threatened with a serious injury

Who must notify the SEC of any stock purchases or sales and the source of funds for that purchase?

Officers, directors, and 10% shareholders

OPA

Oil Pollution Act --Requires company to clean up oil spills within 12 miles of shore & pay costs

US v. Socony-Vacuum Oil Co.

Oil companies conspired with each other to limit production in order to drive the prices up --After WWII --Dictum: Judge blowing of steam --Created Footnote 59: 'I can perceive of NO situation where it can ever be legal to have Horizontal Price Fixing' <-- Becomes the rule for 30-40 years --Ignores Appalachian Case

Rational Basis Test

On the low end of the equal protection standards -Applies to laws concerned with economic or social classes -Gov't only has to show a rational relationship to any legitimate governmental interest

Product Market Extension

One company mergers with another company that makes a similar product to the first company --i.e. Blue Bell & ice cream cone manufacturer

Repudiation (Anticipatory Breach)

One party In ADVANCE Of Time of Performance notifies innocent party that they will not perform under contract --Innocent Party is discharged if chooses to be --Can treat contract as breached and find replacement

Liquidated Debt

One party can tell you EXACTLY how much you owe

Partially Executed Contract

One party has completed the work, the other party has not -Executory

Unconscionable Contract

One party, due to unequal bargaining power takes advantage of other person -Violates public policy

Unilateral Contracts

One promisor, promise for an act -Offeree accepts by PERFORMANCE -Enforced once performance is performed by offeree

Temporary Nuisance

Ongoing nuisance that continues to be a nuisance from time to time

Minority Rule

Only a few states choose to follow that rule of law

What is the standard if your employee asks for special treatment due to his/her religious beliefs?

Only have to comply with that treatment if it does not put a substantial burden on the employer or business

Hester v. U.S.

Open Fields Doctrine: police can search in an open field even in a trespassing manner -No privacy in an open field -i.e. Marijuana fields

Concurrent Opinion

Opinion written by Judge(s) who agree with the decision, but for a different rationale -NOT precedent

Dissenting Opinion

Opinion written by Judge(s) who disagree with the decision -NOT precedent

Panel Decision

Opinions issued by a panel of [3] judges -Court of Appeals uses Panel Decision

Slander

Oral, transitory, or unrecorded speech

Subpoena Power

Orders person to appear, forcing them to give testimony or produce documents --Can result in jail time if non-compliant (Contempt of Court)

Feather Betting

Over-stuffing a contract --Forced management to pay for work that was never going to be done --ILLEGAL under Wagner

Leegin Creative Leather Products v. Kay's Kloset

Overruled Dr. Miles Case -Made maximum price fixing handled under the Rule of Reason -Kay's sold Leegin and had to sign an agreement not to sell their products below the suggest price (RPM) --Ruling: Vertical Price Fixing is ALWAYS Rule of Reason ----Legalizes RPM (could ne pro-competition and enhance the marketplace, thus Rule of Reason was appropriate

Independent Contractor

Person who contracts for a specific job and is not directly controlled by the Employer -Employee is in control of specific job -Employer has control of the completed job but NOT while job is underway -Employer not usually liable for Indep. Contractor's Torts

Consumer Leasing Act

Personal property leased by a consumer for personal use --TILA Part E --Total payments up to, but not over, $25,000

Confinement

Physical restraint, using threatening force -Force or threat against person, family, or person's property

10th Amendment

Police Powers are reserved to the States -Power of a state to place restraints on personal freedom and property rights of persons for the protection of public safety, health, and morals, or the promotion of the public convenience and general prosperity -Includes business regulation SO LONG AS it does not interfere with interstate commerce (which basically all businesses do in some way)

Hudson v. Michigan

Police do not have to "knock-and-announce" before entering a building

Haymarket Square Strike

Police used to break the strike --Largely Socialists --9 police officers killed, 9 labor leaders convicted and hung without any kind of evidence

Be sure you understand the difference in Constitutional protection for commercial speech as opposed to political speech in light of United Citizens?

Political speech receives much greater Constitutional protection than commercial speech

Gov't Trump Card

Potential Competition --i.e. Proctor Gamble: Soap company that also did Soap Operas, wanted to take over Clorox in merger --Gov't blocked merger saying Gamble should make their own bleach and go into competition with Clorox

Federalism

Power is shared between the National and State Gov'ts

Implied Authority

Power necessary to carry out express authority

Territorial jurisdiction

Power of court to require a litigant to physically come to court -Can always sue a defendant in their home state -Create territorial jurisdiction in any of 3 ways: 1) In personam jurisdiction 2) In rem jurisdiction 3) Quasi in rem jurisdiction

Food Additives Amendment to Food Drug and Cosmetic Act (Delaney Clause)

Prevents any additives shown to be cancer-causing --i.e. Red dye No. 2 panic (Mars pulled their red M&Ms)

Bankruptcy Chapter 11

Primarily for businesses (without a set income) --GM, Chrysler were successful --Organize a plan to work out of debt

Surety

Primarily liable --Does NOT have to try to collect from Debtor first

Administrative Agencies [Bureaucracy]

Primary tool for regulation by the gov't --aka "Fourth Branch of the gov't"; supplements other branches --Go after the rich and powerful --NOT democratic (members are not elected)

Vicarious Liability

Principal can still be liable for unauthorized, intentional or negligent torts -Agent acting within scope of his employment -Same rule whether agent paid or not -Only Agent liable if unauthorized

What is the difference in a public and private nuisance?

Private nuisance affects only one or a few people --Public nuisance affects the community or the public at large

What type of rules do the courts usually give the most intense scope of review coming from the Regulatory Agencies?

Procedural Rules & Regulations

Which Rules are the Judges more critical of?

Procedural Rules and Regulations --You already had your day in court for the Substantive Rules

Product Market Competition

Product market may provide constraints on the officers' ability to act in their own interest rather than in the shareholder's best interest --Firm must remain competitive with rivals --The ONLY successful check on corporations/BoD

Consumer Products

Products produced or distributed for personal use, consumption, or enjoyment in a household, school, or in recreation --Specifically excludes products intended for industrial purposes

Who can have a Professional Corporation?

Professionals (attorneys, doctors, dentists, accountants)

Civil Rights Act of 1964 Title VII

Prohibits discrimination in hiring, terms, or conditions of employment, referral of applicants, etc. (Virtually ALL areas of employment) based on 1) Race 2) Color 3) Sex 4) Religion 5) National Origin Review: Ollie's BBQ

Religious Freedom Restoration Act (RFRA)

Prohibits the federal gov't from substantially burdening a person's exercise of religion except when the gov't can demonstrate that application of the burden to the person advances a compelling governmental interest and that it is the least restrictive means of furthering that governmental interest -Response to Oregon v. Smith case

Parol [oral] Evidence Rule

Prohibits the use of oral evidence or extraneous evidence if contrary to terms of written contract --Written contract speaks for itself

Federal Trade Commission Act of 1914

Prohibits unfair methods of competition in or affecting commerce, and unfair or deceptive acts in or affecting commerce --Safety Net/Catch-All Law (Covers anything) --Makes anything anti-trust that is unfair actionable by the FTC --Creates FTC & is Enforced by FTC --Any business activity that may tend to create a monopoly by unfairly eliminating or excluding competitors from the marketplace is condemned --Can be used to regulate all forms of anti-competitive behavior not covered by Sherman or Clayton --Mainly Civil (easier to prove, lower penalties)

4th Amendment

Prohibits unreasonable search and seizure without a warrant resulting from probable cause -Warrantless searches: 1) Search of arrested person's body and immediate area around them 2) Things in plain view 3) The person is committing a crime or about to (reasonable suspicion) 4) Consent of the detained individual 5) Open Fields Doctrine (i.e. Marijuana)

Offer

Promise to enforce an agreement 1) Intent 2) Definite Terms and Conditions 3) Communication of the offer

Steps in Formal Rule-Making

Promulgate the rule and publish in Federal Register, but then also have to publish public hearing dates to challenge the Rule with NO time limit 1) Agency identifies need for rule or regulation 2) Proposal rules are promulgated 3) "Notice of Proposed Rule-Making" published in Federal Register 4) Formal trial-like hearing 5) Final Draft published and can become effect NO SOONER than 30 days, but can be repealed long after that --Substantive Rules passes this way --i.e. FDA created new rules for serving sizes, but won't go into effect for a while to give people time to object

Collateral

Property bought with the money given/loaned out, subject to security interest --Real Estate --Purchase Money Security Interest (PMSI)

What is the difference between intentional interference with contract and interference with prospective economic advantage?

Prospective Economic Advantage is broader b/c an agreement of the parties in form of contract is NOT required (deals more w/stealing customers during negotiations)

Search Warrant

Protected by the 4th Amendment

Self-Incrimination

Protected by the 5th Amendment

Burlington Northern & Santa Fe Railway v. White

Protected employees from Employer Retaliation as well as any employer action that would dissuade a reasonable worker from making a charge of discrimination

Age Discrimination in Employment Act

Protects ages 40 years and above --"Voluntary Retirement" is a way companies get around this

What is the Business Judgment Rule?

Protects corporate Directors or Officers if: 1) The action taken was an informed decision 2) There was no conflict of interest 3) There was a rational basis for the decision

Business Judgment Rule

Protects corporate Directors or Officers if: 1) The action taken was an informed decision 2) There was no conflict of interest 3) There was a rational basis for the decision --Decision does NOT have to be the correct one or supported by the weight of info, just rational --Helps attract top quality individuals to the Board by protecting them from personal liability and allowing them to not be afraid to gamble for the good of the corp.

Endangered Species Act

Protects endangered and threatened species --Only Act that can stop a project dead in its tracks --Can prevent the owner from developing his property without paying for land --Prevents land use with NO compensation required & NO 5th Amendment

Free Exercise Clause

Protects the rights of individuals to free exercise of religion

Galella v. Onassis

Public figures do not lose all of their rights of privacy --Still have a right to privacy as to the details of their private life

Defamation

Publication of a FALSE statement that tends to injure a person's reputation or good name causing the public to hold that person up to hatred, contempt, or ridicule, or cause him/her to be shunned or avoided -Libel -Slander

Are punitive damages the method by which the law of Torts discourages wrongful actions, or is the discouragement accomplished through the awarding of compensatory damages?

Punitive Damages

Browning-Ferris-Industries of Vermont v. Kelco

Punitive damages are against the spirit of the 8th amendment --

PMSI

Purchase Money Security Interest --i.e. Bank automatically has PMSI on things bought by debtor with the money borrowed --i.e. After Acquired Property

Valentine v. Chrestensen

Purely commercial speech not protected

Virginia State Board of Pharmacy v. Virginia Consumer Council

Purely economical speech is now protected speech -But gov't CAN regulate commercial speech -Can have reasonable restrictions based on time, place, and manner of commercial speech

Request for Admissions

Purpose: establish facts -"Please admit or deny the following" -If failed to deny, they are deemed admitted -Reduces evidence at trial

Compensatory Damages

Purpose: to make innocent party whole again by covering: 1) Past & future medical expenses 2) Past & future economic loss 3) Past & future pain and suffering

Federal-Lanham Act (Trademark Act)

Purpose: to prevent customer confusion through trademarks

NLRB v. Washington Aluminum

RULING: NLRA protects non-unionized employee's concerted activities, when such activity was for "mutual aid or protection"

Fisher v. Univ. of Texas

Race can be a factor in admission policy, BUT cannot be the major or only factor -Followed Bollinger case

Northern Pacific Railway Co v. US

Railway agreed to sell their land very cheap, but they would have to ship their products on the railroad --Objections led to Railway adding provision: "unless they could find a cheaper way" --Gov't still said no b/c no one else could compete if they had a monopoly on the shipping --Came up with the 3 steps making something illegal tying arrangement

*Tidelands Auto Club v. Walters*

Rare victory in Intentional Infliction of Mental Distress --Insurance company lied that Walters' wife was intoxicated when she crashed and died when the autopsy report reported otherwise, just so they wouldn't have to pay the life insurance

What is the difference in trespass to personal property and trespass to real property?

Real property is land or anything permanently attached to it --Personal property is wrongful invasion of ownership rights in property other than land, interference w/the property owner's right to exclusive use and possession of personal property

Federal Crop Insurance Corp v. Merrill

Reasonable ignorance of a gov't regulation is NOT a defense to an agency action

RACT

Reasonably Available Control Technology --Normally for previously existing stationary sources --Lower cost, but still NOT low

Virginia Graeme Baker Pool & Spa Safety Act (P&SS Act)

Requires public pools to install equipment to avoid drain suction problems that resulted in death of Virginia Graeme Baker

Griswold v. Connecticut

Recognized the Right of Privacy -Connecticut's Law forbidding contraceptives was ruled unconstitutional b/c it violated the rights of marital privacy

Horizontal Group Boycotts

Refusal to deal --If 2 competitors agree not to deal with other competitors on the same level of competition; Purpose is to eliminate or discipline a competitor of the boycotting group --If boycott involves horizontal agreements among direct competitors, rule is Per Se ILLEGAL

Nuclear Waste

Regulates nuclear powered fuel plants and their hazardous wastes --Administered by NRC

Securities Exchange Act of 1934

Regulates proxy solicitation --Main way shareholders vote --Way for directors to control shareholders by getting shareholder proxies

What was the Kefauver-Harris Amendment? Status?

Regulates the Effectiveness of Drugs (as well as safety)

Securities Act of 1933

Regulates the initial sale of securities to the public 1) Initial sellers of securities must file registration statement with SEC -- Bonds, Common Stock, Preferred Stock --Must file registration statement w/ reqr'd detailed info. --Requires companies to give the public correct information about the company and what your money will be used for so that you can make an INFORMED decision about whether to invest in their stock/bonds --NO assessment of the info/company

Landrum-Griffin Act

Regulates the internal affairs of American labor unions --Financial affairs of labor unions --Election of union officers >>Result: Unions are among the most highly regulated private organization in the country Text 256

Securities Exchange Act of 1934

Regulates the re-sale of previously issued securities on secondary markets, such as: 1) NASDAQ 2) NYSE --Helps inform investors whether they should hold on to stock or sell --Does NOT apply to LLC Membership (1933 & 1934 apply to publicly traded companies ONLY)

Consumer Product Safety Improvement Act (CPSIA)

Regulations for all children's products --Must have a Children's Product Certificate proving compliance --Must have permanent tracking information on the product --Applies to foreign AND domestic products --Led to many recalls for children's products

Exculpatory Agreement

Releases one party from consequences of wrongful acts of negligence -Violates public policy -Extreme, hard to prove -i.e. Machine falling apart and falling on someone's face at the gym

Van Orden v. Perry

Religious monument in TX allowed b/c it was a group of monuments and did not endorse a specific religion

Impeach

Removal of credibility (of evidence, witness, etc.)

Heart of Atlanta Motel v. U.S.

Renting rooms to interstate travelers makes the motel involved in interstate commerce -- Federal Gov't can regulate it -Ruled against Southern business

Motion for New Trial

Request filed by the losing party after the verdict -Must have a very good legal reason for the judge to set aside the verdict and start the trial all over again

Directed Verdict

Requested by the defendant on the grounds that the plaintiff has failed to sustain the burden of proof in proving the necessary facts -If judge agrees, case is dismissed --> Plaintiff can appeal

Sunset Laws

Require periodic review of the agency and may not extend them with new legislation to continue --i.e. in Texas, Agency has to justify its existence. TX Legislature can either extend it or let it expire on "death day" --Does NOT apply to Federal Agencies

Executive Order 13563 (1/18/2011)

Requirement that new regulation must impose the least burden on society --Orders agencies to select the approach that maximizes net benefits --Limited form of cost justification for new regulation --Seeks to avoid redundant, inconsistent, and overlapping regulatory requirements

Hart-Scott-Rodino Antitrust Improvement Act of 1976

Requirements of notification Prior to Merger to the: 1) FTC & 2) Department of Justice >30-day time period after notice during which gov't can sue to stop the merger

Regulation Z

Requires Disclosure of: 1) Cash price compared with the total financed cost of the item 2) Finance charges including interest and other loan fees 3) Annual Percentage Rate (APR) 4) Starting date of obligation 5) Amount of payment 6) Number of payments 7) Description of collateral 8) Costs for late payments/ pre-payments

Statutes of Frauds (1677)

Requires certain contracts be in writing to prevent fraud by claiming that a contract existed when in fact it did not --Based on Statutes of Fraud from England --Common Law, NOT statutory law

Rescission and Restitution

Rescission is an action to undo or cancel a contract --Restitution: consideration --Used in fraud, mistake, duress of failure of consideration --i.e. If innocent party had expenses or money due - restitution is due

Member-managed-Members

Resembles partnership in structure and operation but NOT in liability --Each member gets on vote in the firm's business decisions

RCRA

Resource Conservation and Recovery Act of 1976 --Regulates disposal of new hazardous wastes --Decreases use of land containment --States have primary responsibility

What are the goals of the Sarbanes Oxley Act?

Restore trust in capital [stock] market by: -1st: seeks to strengthen corporate governance of publicly traded corporations by new requirements on auditors, corp. board, and corp. executives -2nd: addresses perceived problems within the public accounting profession

Sarbanes-Oxley Act of 2002

Restores trust in capital [stock] market -Aka Public Company Accounting Reform and Investor Protection Act -Response to Enron Debacle/Scandal -1st: seeks to strengthen corporate governance of publicly traded corporations by new requirements on auditors, corp. board, and corp. executives -2nd: addresses perceived problems within the public accounting profession --Created Public Company Accounting Oversight Board to establish and enforce ethical and auditing standards

Goal of SE Act 1934

Restrict ability of use of inside information by Rule 16(b) and 10(b) --Can be Inside Accounting (Does NOT have to be independent acct.) --Inside information is any info that is not yet publicly available --Prevent people with inside info from using that info to their benefit before the public has access to that info

Customer Restrictions

Restrictions on who can sell to, such as wholesalers only

Nutritional Labeling and Education Act (1990)

Revolutionized how the FDA would require the listing of basic nutritional labeling info. --For products with any added additive & Diet products

Reformation

Rewrites the contract to express true agreement of the parties --Clerical errors

John Rockefeller

Richest and most powerful businessman --Monopolized oil and railroads --Became target of Antitrust Laws

Cantwell v. Connecticut

Right to BELIEVE a religion is absolutely protected -But right to practice is NOT absolute

Standard Oil Trust

Rockefeller's trust --Standard Oil used its power to squeeze competitors out of business --Controlled most of the world's oil industry --Broken into various geographically-based companies by Ohio Supreme Court

Lawrence v. Texas

Ruled Texas law against homosexuality unconstitutional on basis of Right to Privacy -Law was a violation of Due Process Clause as well

Roe v. Wade

Ruled Texas law forbidding abortion unconstitutional -Court held that women have a right of privacy to decide whether to terminate pregnancy in first trimester

Smith v. Allwright

Ruled White Primaries unconstitutional

Cammarano v. U.S.

Ruled that Valentine v. Chrestensen not protecting commercial speech was a hasty decision

Steps in Informal Rule-Making

Ruling Body of Admin. Agency promulgates (creates) the Rule, given 30 days to object to it, and then it goes into effect 1) Agency identifies need for rule or regulation 2) Agency promulgates draft of the rule 3) Gives notices as required by APA to public by printing in the Federal Register (daily gov't publication) 4) Final draft published in Federal Register and takes effect in 30 days --Not a great deal of Due Process here --Can be done with Regulations and Procedural Rules, but NOT Substantive Rules

What Federal Agency regulates the Sale of Securities?

SEC

Tying Arrangements (Tie-in Sale)

Sale of one product conditioned upon required purchase of another product --IBM v. US --"Buy one get one free" is Legal Tying

Service Mark

Same as Trademark, except denotes service rather than product

Univ. of Wisconsin v. Southworth

School could charge students a fee even if the student opposed the fee being distributed to certain organizations as long as the University's program respected the principle of viewpoint NEUTRALITY -Universities can change students fees for services they don't use

Guarantor

Secondarily liable --Creditor must try to collect the debt from the Debtor first, then go against guarantor if Debtor does not pay

Warranty of Fitness for particular purpose

Seller must be aware at the time of the sale of the buyer's specific needs and warrant that its product will do so

Tying Arrangements

Seller requires a buyer to purchase a "tied"product as a condition of purchasing the desired tying product 1) Tends to forestall competition 2) May facilitate the spread of monopolistic power form one market to another 3) Forces buyers to make an all-or-nothing purchase 4) Does NOT work in competitive markers where buyers would simply purchase whatever products they desire 5) Seller can compel buyers to purchase a less desirable product in order to be able to acquire a more desirable product 6) Only apply to exchanges of goods, not services

Corporation

Separate legal entity created by state law --Taxed as separate legal entity; shareholders also taxed -------> Double taxation (DISADVANTAGE) --Written agreement is REQUIRED legally --Limited Liability for the owners (amt. of investment) --Most popular form for a large business (most biz by volume) --"Piercing the Corporate Veil": proving that a corp. is actually functioning as a sole proprietorship and establishing personal liability

Corporation

Separate legal entity responsible for its own debts --Limited Liability for its owners (shareholders) 1) Corp. responsible for its own debts 2) Shareholders NOT personally liable for the corporate debts 3) Makes it easier to attract capital market for funds

Publicly Owned and Traded Corporations

Separation of ownership and management --Individuals with no management skills can participate in the corporate profits, growth, and ownership --People w/considerable management skill but little capital can manage their own business on others' dimes --Investors can diversify their holdings in different stock --> reducing riskiness of investment --Shareholders have Limited Liability

National Enforcement Ombudsmen

Serves as a clearing house for comments from small businesses --Based on those comments, agencies are rated and results are published --Created within the Small Business Administration (SBA)

Dispute Resolution Role

Settles difference between people and businesses

Closely[Privately] Held Corporations

Shares held by small number of people personally known to each other --aka Family Corporations --NOT publicly traded --Can be owned by only one shareholder (Texas requires 2 officers)

Food Safety Modernization Act (FSMA) of 2011

Shift in emphasis from defense to offensive --Result of 9/11 paranoia --Prevent contamination of food from the beginning by conducting vulnerability assessments on products & processes

Co-signor

Sign the debt obligation and are JUST AS RESPONSIBLE as the debtor to repay the debt --It is very difficult to collect debt in Texas

County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh

Simple religious display by gov't entity allowed if it does not endorse ONE specific religion -It is ok to display religious items with other non-religious items so that you are not endorsing a specific religion

Legislative Powers

Simply carrying out the action necessary to achieve Congressional intent from enabling statute --Can pass their own rules & regulations, some of equal weight to an act of Congress!

Standard of Intoxication

So intoxicated that did not understand the very nature of the contract --BUT have the high burden proof (Rarely achieved) --Still responsible for "Reasonable Damages" /Restitution

Rumsfeld v. Forum for Academic and Institutional

Solomon Amendment: Educational institutions will lose certain funding if they deny military recruiters equal access to other types of recruiters on campus -Rule this amendment constitutional

"Reasonable Duty"

Some jurisdictions [Minority Rule] rule that the owner would have the duty to warn or be liable in certain circumstances where the owner knows of the danger (i.e. bad dog) --NOT in Texas

Conditions Precedent

Some stated event must occur before contractual obligations arise --If Condition Precedent never occurs, no contractual responsibility so contract discharged

Conditional Subsequent

Some stated event terminates the contractual obligation

Conditions Subsequent

Some stated event terminates the contractual obligation --Condition Subsequent terminates a party's promise to perform

Duress (REAL Duress)

Someone forces another person to enter into a contract against his/her will --Threats of: 1) Illegal actions 2) Wrongful action 3) Physical nature --Must be more than economic --i.e. Anna Nicole changed will of her husband before he died ---->family sued

Undue Influence

Someone takes control of another person and substitutes their will for that of the victim

Consideration

Something of value or something bargained for in exchange for a promise, Legal Detriment and Legal Benefit -Courts not interested in adequacy of consideration (whether too much or too little than is fair)

Wagner Act of 1935 [NLRA]

Specifically legalizes unions --Aka National Labor Relations Act (NLRA) --Allows workers the right to: 1) Self-organize to form, join or assist labor organizations 2) Collective bargaining through representatives that they chose 3) Engage in other concerted activities for Collective bargaining, other mutual aid, or Protection --Aka "Magna Carta"/Pinnacle of Labor Movement --First time National Gov't gets involved in Labor --Virtually NO union activity was an unfair labor practice

Performance Standards

Specifies minimum performance criteria

Political Speech

Speech that includes some political content -afforded the greatest protection under the 1st amendment since it allows criticism of gov't

Conditional or Qualified

Statement made in good faith with proper motives -Can be no malice -Must be made to protect some recognized interest -i.e. Doctors

Constitutional Privileges

Statements made by legislators and other public officials -Type of absolute privilege -Have to be involved in their OFFICIAL capacity

How are statutory laws different from common laws?

Statutory Laws are created by legislative bodies and constrain businesses' behavior, while common laws are created by the courts and are often on controversial matters

Interference w/Prospective Economic Advantage

Steal customers during negotiations -Must have intentional interference AND unreasonable/improper manner -No contract required -NOT recognized by Texas (unnecessary)

Skinner v. Oklahoma

Sterilization law required mandatory sterilization of defendant after multiple convictions - applied to grand larceny, but not to embezzlement (white collar crime) -Court struck law down b/c there was no logical basis for distinguishing between the 2 crimes

What caused the U.S. to be thrown into the Great Depression?

Stock Market Crash 1929 --A lot of companies were over-valued

Necessary & Proper Clause

Stretches the power of the national gov't to make all laws that are "necessary and proper" for carrying out duties (expands enumerated powers to cover all contingencies) -Inherent Powers Clause (McCulloch v. Maryland) -Implied Powers Clause -Elastic Clause

First National Bank of Boston v. Bellotti

Struck down Massachusetts's law prohibiting corporate political speech

Restatement (Third) of Torts on Products Liability

Suggests major changes in products liability --Doing away with distinctions between Negligence, Warranty, or Strict Liability --Wants to replace with liability rules based on type of defect or problem with one term products liability base on Design, Manufacturing, and Inadequate instruction on warnings --Not yet adopted in TX

Federalists

Supporters of the Constitution

Parker v. Brown

Supreme Court recognizes that actions by a state gov't are exempt if the state clearly articulates and actively supervises the policy behind its action

Atlas Roofing Co v. Occupational Safety and Health Review Commission

Supreme Court ruled that the 7th Amendment's requirement that jury trial is to be preserved does NOT extend to statutory proceedings such as Administrative Adjudications

Shearson/American Express v. McMahon

Supreme Court ruled that, if the parties to a lawsuit had agreed to go to arbitration rather than litigation, then the Federal Arbitration Act required them to go to Arbitration -No changing your mind

Constitutional Law

Supreme Law of the land

Stromberg v. California

Symbolic Speech is protected -Overruled the conviction of a communist for displaying a red flag as a symbol of opposition to the gov't

Morse v. Frederick

Symbolic speech is NOT upheld in schools -"Bong Hits 4 Jesus" case

Limited Liability Partnerships (LLP)

TYPE of Partnership created to avoid some earlier problems of LLCs --Falls under State Law --Has all advantages of a partnership --Separate Legal entity

Eminent Domain

Taking of private property by gov't for public use -Gov't must have a reason to take the property -Gov't must give just compensation (not necessarily fair market)

Misappropriation

Taking or stealing a secret and using it without the owner's permission

Federal Anti-Tampering Act of 1983

Tamper-resistant Packaging Regulations --Because of Tylenol being replaced with cyanide in Chicago

Definite Terms and Conditions

Terms of the offer must have sufficient detail so other party and Court is reasonably certain of terms -Not all details of terms have to be there -Courts can supply minor or immaterial terms -QUANTITY term must be present

Sabine Pilot Service v. Hauck (1985)

Texas case where the courts intervened and ruled that employer could not fire employee for refusing to disobey the law --

Spacek v. Maritime Ass'n

Texas defines Illusory Promise as when it created no obligation whatsoever on part of purported promisor --5th Circuit case

Indust-Ri-Chem (1980)

Texas recognizes that Express Warranty can be sample --The manufacturer was held liable for changing the specifics of a sample they had given the purchaser

Roman v. Roman

Texas requires consideration [and legality & capacity] to have a legally enforceable contract

TMC Worldwide, LP v. Gray

Texas requires legality & capacity [and consideration] to have a legally enforceable contract --Consideration is a present exchange bargained for in return for a promise and consists of either a benefit to the promisor or detriment to the promisee

Buddy L, Inc. v. General Trailer Co, Inc.

Texas: presumption exists in law that one possesses sufficient mental capacity to enter into contracts

Schenck v. U.S.

The 1st amendment is NOT absolute, subject to certain limitations -Congress can restrict speech if it creates a "clear and present danger" -i.e. Shouting "fire" in a crowded theater

Unfriendly Offer

The Board of the target company refuses the bid from the acquiring company

Commerce Clause

The Congress shall have the power to regulate Commerce with foreign Nations, and AMONG the several States [interstate commerce], and with Indian tribes -If a business is involved in interstate commerce, federal gov't can regulate the business

What is the reasonable person test and what does that mean to contracts?

The Court's standard of care --Negligence = failure to do what the ordinarily prudent/reasonable person would do under the same or similar circumstances

New State Ice Co. v. Leiberman

The New State Ice Company had brought suit against Liebmann to prevent him from selling ice without a license -Court held that due process prevented a state legislature from arbitrarily creating restrictions on new businesses only on the claim that their markets affected a public use -"...a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Ishin Speed Sport, Inc v. Rutherford

The Offer and Acceptance must be in strict compliance with the offer's terms and are essential to creation of a binding contract

What was the doctrine of incorporation and how is it used? What is its effect? What is the doctrine of reverse incorporation?

The Supreme Court holds that most of the rights contained in the Bill of Rights also apply to the state gov'ts -Limits the power of the state gov'ts -Parts that do NOT apply to the States through this: 1) 3rd Amendment Prohibition of Quartering Soldiers 2) 5th Amendment Right of Grand Jury 3) 7th Amendment Right of Jury Trial in Civil cases -Reverse Incorporation: Equal Protection under the 14th Amendment applies to the National Gov't as well b/c of the 5th Amendment

Police Powers

The power of the state to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals, or the promotion of the public convenience and general prosperity, are reserved to the individual states -10th Amendment -Sometimes delegated to local gov'ts -i.e. corporations, commercial transactions, criminal law, motor vehicle law, and franchising contracts

Standing to sue

The ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case -Case must affect you personally -In business: must show the law or regulation that affected the particular business

Long Arm Jurisdiction

The ability of local courts to exercise jurisdiction over foreign (out of jurisdiction) defendants, whether on a statutory basis or through a court's inherent jurisdiction (depending on the jurisdiction). -Permits a court to hear a case against a defendant and enter a binding judgment against a defendant residing outside the jurisdiction concerned. -Generally, the authority of a court to exercise long-arm jurisdiction must be based upon some action of the defendant which subjects him or her to the jurisdiction of the court.

Friendly Offer

The acquiring company asks the target Board of Directors and they have agreed to endorse the takeover and recommend its acceptance by the shareholders

Trial

The attempt by the plaintiff to prove the disputed facts which are necessary for the court to award the relief sought, and the attempt by the defendant to thwart the plaintiff

Challenge for Cause

The attorney challenges the prospective juror's ability to be fair and impartial, accusing them of having some bias or prejudice -Judge makes the decision on the challenge -No limit to number of challenges for cause

Peremptory Challenge

The attorney's challenge of a prospective jurors impartiality before the trial -Almost no basis needed for challenge -Does NOT require the judge's permission -Limited depending on the type of case (ranges from 3-15 in TX)

Tombstone Ad [Prospectus]

The basic facts of the company, under the 1933 Act --Not a whole lot of info, just enough to get you interested in doing your own research

District Court

The basic trial court that is only a trial court for the state of Texas -Can consist of one or several counties -ONLY a trial court, NOT appellate -Authority over felonies -Authority over civil: $200+, Family law, Land Titles, Election contests -Judge must have a law degree, 4-year term

Law

The collection of rules and regulations that determines how the gov't will treat its citizens and how the citizens will treat the gov't as well as other citizens, and enforcement thereof

What is law?

The collection of rules and regulations that determines how the gov't will treat its citizens and how the citizens will treat the gov't as well as other citizens, and enforcement thereof

Why were Sunday Laws/Blue Laws upheld by the U.S. Supreme Court?

The day of rest and recreation is for the workers, not necessarily for religious reasons

Public Law

The gov't is involved

Rahul Nath M.D. v. Texas Children's Hospital & Baylor

The hospital and Baylor were awarded attorney fees as sanctions against Dr. Nath for claiming intentional infliction of emotional distress in bad faith, harassment, and lack of evidentiary support

Legislative Intent

The intent of the legislative body when drafting statutes -- the legislative body's interpretation

Majority Rule

The majority of states follow that rule of law

"Secondary Meaning" Trademark

The mark becomes the representation of the product --i.e. golden arches, Volkswagen

Monetary Damages (Legal Damages)

The most common remedy in breach of contract --Goal: compensation for the loss of the bargained-for exchange --Do NOT get punitive damages in a pure contract situation

Pleadings

The natural starting point for a discussion of trial procedures

Plaintiff

The party that begins the lawsuit

Defendant

The party that is sued

Jurisdiction

The power of a court to hear and decide certain types of cases

Checks and Balances

The power of each branch is limited by the other 2 branches -Powers of the gov't separated into specific functions that together represent a strong central gov't

Judicial Review

The power of the courts to declare an act of Congress or the President unconstitutional -Established in Marbury v. Madison -Can be overruled by Constitutional Amendment ----i.e. Texas v. Johnson flag burning controversy

What is Judicial Review and how did the courts assume the power?

The power of the courts to interpret the constitution and statutes and declare an act of Congress or the President unconstitutional and unenforceable -Marbury v. Madison:

Discovery

The pretrial process by which each party obtains information from the opposing party or some third party with relevant information -Prevent surprises -Allow parties to adequately prepare their case -Preserve evidence -Harass opposing party into settlement

Codification

The process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code -The creation of codes, which are compilations of written statutes, rules, and regulations that inform the public of acceptable and unacceptable behavior

Hoffman-La Roche v. Zeltwanger

The purpose of the tort of Intentional Infliction of Emotional Distress is to supplement existing forms of recovery by providing a cause of action for egregious conduct that might otherwise go unremedied --Where the gravamen of a plaintiff's complaint is really another tort, Intentional Infliction of Emotional Distress should not be available

Reasonable Person

The standard by which the courts rule on whether an action taken makes a person liable, privy to compensation, etc.

Jim Crow Laws

The states' efforts to keep minorities, primarily African-Americans, as second-class citizens

Regents of Univ. of California v. Bakke

The touchstone for constitutional analysis of race-conscious admissions policies -Student body diversity is a compelling state interest that can justify using race in university admissions -When racial discrimination is involved, the Court will apply strict judicial scrutiny (state has to prove a compelling state interest in support of the use of race) -State also has to show that use of race did not unduly burden disfavored groups

Regulatory Capture

The very people you are trying to regulate are in charge and the targeted industry benefits from regulation --Elected officials are paid off by industry companies who then appoint them to head the agencies regulating their own businesses --Public interest thus ignored

Rebuttal

The witnesses called by the Plaintiff to "rebut" or fix the damage done by the defendant when he/she put on their case -Cannot bring any new evidence -Direct examination followed by cross-examination

What are the purposes of Tort Law? How does the law of Torts compare with the law of contracts? What are the goals of Tort Law?

To remedy CIVIL wrongs --Remedy in the form of Punitive Damages --Tort law designed to compensate injured Plaintiffs through award of damages --Tort standard of proof = more likely than not

Radithor

Tonic with Radium that led to slow & painful death

Breach of contract results in: __ __ ___

Tort of Nuisance

Punishment

Torts used to punish defendant through monetary damages

Natural Monopolies

Total production costs for a single firms serving a market are lower than total production costs for a group of competitive firms serving that same market

TRI

Toxic Release Inventory --Provides details on the emissions by 22,000 plants of over 300 chemicals believed to have health consequences --Comes from self-reporting by emissions firms

TEAS

Trademark Electronic Application System

Who is [generally] liable for damages caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains?

Trespasser --Exceptions: 1) Reasonable Duty 2) Attractive Nuisance Doctrine

Appeasement

Tries to limit the negative impact to the injury itself by giving the injured party a legal means to right the wrong 1) Compensation to victim 2) Satisfaction that defendant had to pay

T/F: No such thing as minority representation by Unions

True-Union rep everyone

TILA

Truth in Lending Act -Strictly a Consumer Law that applies to loans for: 1) Personal items 2) Family needs 3) Household purposes --Does NOT cover business loans --Disclosure Law --Administered by Federal Reserve Board --Regulation Z

What court hears Patent Appeals?

U.S. Court of Appeals for the Federal Circuit in Washington D.C.

USPTO

U.S. Patent and Trademark Office

Bankruptcy

Ultimate Debtors right - Last Result --Federal Law, NOT state --Chap. 11 and 13 cases generally do not work and end up becoming Chap. 7 Liquidation Bankruptcy --Can only apply for Bankruptcy once every 7 years

Restriction on the use of child labor

Under 14: 14-15: 16-17:

Moral Hazard

Under a simple negligence standard, those at risk do not have incentive to take self-protective or loss-avoidance measures

Negligence

Unintentional Tort -Arises due to failing to use reasonable care -i.e. Car wrecks

Negligence

Unintentional but careless or reckless conduct, the failure to exercise due care when there is a foreseeable risk of harm to others 1) Duty 2) Breach 3) Causation 4) Harm --Standard: Reasonable Person Test

3) What has been the major growth area for US unions in recent years?

Unionization by state and local gov't workers

Texas Malicious Prosecution

Unique requirement of special damages or special injuries -Malicious Prosecution requires a higher degree of proof and must be positive, clear, and satisfactory -Texas courts do NOT favor these cases

Warranty of Merchantability

Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. --The serving for value of food or drink to be consumed either on the premises or elsewhere is a sale

General Partner

Unlimited liability, responsible for ALL debts & liabilities --Fiduciary duty to Limited Partner(s)

Blurring

Unrelated product uses Trademark --i.e. Xerox baby oil treatment

Disparagement

Untrue statement about Plaintiff's product or property made with malice that results in special damages (i.e. loss of a customer) -Form of Defamation 1) Slander of Title 2) Slander of Quality

Senatorial Courtesy

Unwritten tradition that the President calls the Senators for their recommendations of judges to be appointed to the Constitutional Courts -In order to stay on the good side of the people

Employment Division, Dept. of Human Resources of the State of Oregon v. Smith

Upheld Oregon law that allowed Employers to fire people on illegal drugs -Cannot allow employees to violate the law in the name of religion -Court ruled that judges were NOT required to engage in a case-by-case assessment of the religious burdens imposed by the Constitution

Austin v. Michigan Chamber of Commerce

Upheld a Michigan law limiting corporate political speech -prohibited corporations from using general corporate funds for independent expenditures in state political campaigns

McConnell v. Federal Election Commission

Upheld a challenge to limits on electioneering communications -overturned by Citizens United v. Federal Election Commission

Cunningham v. MacNeal Memorial Hospital

Upholds Strict Liability --The test for imposing strict liability is whether the product is unreasonably dangerous

Tarnishing

Using trademark in a negative fashion --i.e. Coca-Cola Santa using cocaine poster

Liens

Usually not established by written security agreement but does give specific rights to lienholder in certain property --"Perfect the Lien" means filing it

Voidable

Valid contract that is able to be voided, but not yet void -i.e. Contract with a child

State Law

Vast majority of litigation, includes: -Municipal ordinances -State legislators -State regulatory agencies -Sometimes, county gov'ts

Sunland, Inc.

Voluntary Recall of almond and peanut butter products

Assumption of Risk

Voluntary exposure to a known risk

Assumption of Risk

Voluntary exposure to a known risk --Can serve as a defense to Negligence --Plaintiff is fully aware of the risk, the possibility of injury incurring, and voluntarily proceeded to use the product, in spite of such risk

21) What was the Magna Charta of the American Labor Movement? Why?

Wagner/NLRA --First time National Gov't got involved with Labor

No-dating co-workers policies

Walmart example: --Mixed decisions from different NY courts concerning whether co-workers dating can be prohibited by Walmart

Georgia v. Randolph

Warrantless search is allowed if a co-occupant allows the search

Administrative Warrants

Warrants for inspection of business in regulatory situations -Normally easily obtained -Sometimes no warrant necessary for highly-regulated industries or if health is an issue ----Liquor, guns, strip mining, food industry, meat packing plants

What are the liabilities in a tort situation of the parties to an agency?

Was Agent acting within scope of his/her Agency duties??

Tort Liability

Was the Agent acting within the scope of his agency duties?

Power of Attorney

When a contract is in writing --Unless under the Statute of Frauds, Agency relationship does not have to be in writing

Boycott

When a group conspires to prevent the carrying on of business or to harm a business [can include consumers, union members, retailers, wholesalers, & suppliers] --ALWAYS Per Se Illegal (EXCEPT in Labor Law)

Judicial Activism

When a judge is NOT bound by legislative intent and can change legislative intent

Judicially Passive

When a judge rules based on legislative intent

WhistleBlower Protection Act

When a public employee reports the employer for an illegal act (NOT Private Sector) --Not very effective --No protection in the Private sector --Only protects employees in Public Sector IF they prove they were acting in the public's interest, not personal interest

Stare Decisis

When courts follow previously decided cases unless there is a good, legal reason to change

FTC v. Superior Court Trial Lawyers Assn

When horizontal competitors use a boycott to force a change in the nature of a vertical relationship, there is a PER SE violation

Equitable Remedies

When monetary damages are insufficient to make the non-breaching party whole after a breach --Court ordered action to do or not do something (NOT monetary) --Aka Special Damages

What is a closely held Corporation? What are other names that it could go by?

When shares are held by a small # of people personally known to each other --aka Private Corp, Family Corp

When can an intoxicated person void out a contract? When does he/she have to pay restitution?

When so intoxicated that they did not understand the very nature of the contract --Prove that you normally would not do such a thing --Still responsible for "reasonable damages"

Precedent

When the court follows the stare decisis doctrine, following previously decided cases -Judges are reluctant to change precedent -Leads to predictability and uniformity

Diversity of citizenship

When the defendant and the plaintiff are from two different states

Default Judgment

When the defendant fails to file an answer within the allotted time period, the plaintiff gets everything they are asking for

Regulatory Flexibility Act (1980)

Whenever a new regulation will have a new regulation that has a substantial impact upon a substantial number of small entities, the agency must conduct flexibility analysis --Measures costs that rule will place on small businesses --Must consider less burdensome alternatives --Must alert small businesses of forth-coming regulations

State Court intervention in Employment-at-Will

Where discharge intervenes with "Public Policy": 1) Employee is out on jury 2) Employee refused to disobey the law 3) Employee is in Military service 4) Employee exercises a right that you have (bankruptcy, claim for workers' comp, lawsuit)

Exclusionary Practices/Dealing

Where one firm is given the exclusive right, to the exclusion of others, to buy, sell, or trade another's product --Effect: substantially lessen competition or tend to create a monopoly

Exclusionary Practices

Where one firm is given the exclusive right, to the exclusion of others, to buy, sell, or trade another's product --Effect: substantially lessens competition or tends to create a monopoly --Contractual attempts by a seller to prevent a buyer from considering competitive bids from other sellers

Geographic Market

Where the product is sold --Local --State --Regional --National --International ----Also influenced by the price of the product

6) What factors would you consider to determine whether an employer or the union was bargaining in good faith?

With respect to wages, hours, and other conditions of employment

Elixir Sulfanilamide (1937)

Wonder drug for children that was basically antifreeze --over 100 died -->Result: Food, Drug, and Cosmetic Act of 1938

Banbar

Worthless cure for diabetes

What is the reasonable person standard?

Would a reasonable person have done this same thing in this situation?

Respondeat Superior

Would employer be in a better position to pay the damages to injured 3rd party? -Principal liable for torts if told agent to commit Tort

Rule of Fours

Writ accepting a case to the supreme court is issued when 4 out of the 9 justices vote to hear it

How do you get a case to the U.S. Supreme Court?

Write a petition for Writ of Certiorari requesting that the Supreme Court allow an appeal -Rule of Fours: 4/9 justices must vote to hear the case -Deals with one of the following: 1) State Court decides a substantial federal question 2) State Court is in conflict with current Supreme Court trend 3) Court rules on issue not previously decided by Supreme Court 4) Conflict exists between different Federal circuits

Written Contracts v. Oral Contracts

Written Contracts easier to enforce -A person's word is no longer a person's bond to reputation --NO punitive damages (punishments)

Agency by Agreement

Written or oral contract

Libel

Written or some permanent form (i.e. video tape)

Interrogatories

Written questions to opposing party (not to witnesses, parties only) -Response is in writing and sworn to -Cheaper than depositions -Historically used as harassment -Can take weeks (30 questions/answers) -Limited in TX (so it doesn't drag on, & to prevent harassment)

Infringement

Wrongful taking or using Intellectual Property without permission or compensation to the rightful owner

Malicious Prosecution

Wrongful use of legal proceeding (Civil OR Criminal) -Must win ALL lawsuits against you and prove NO probably cause -Know you don't have a case, but sue anyway -i.e. Businesses making their competition look bad w/lawsuit

Trespass to Personal Property

Wrongfully harming or interfering with the personal property owner's right to the exclusive possession and enjoyment of their property (intentional meddling) --aka Trespass to Chattel --Borrowing without permission --Intent: deprive owner of the property --i.e. University taking another's mascot

"Attractive Nuisance Doctrine"

Young children do not assume the risk if they are attracted to the premises by some object --i.e. Swimming pools, abandoned fridge

Subject matter of offer is destroyed

i.e. selling a car but then destroying it in an accident before handing it over

Executive Order

laws created independently by the President, controlling the policies of the executive branch -Affirmative Action -i.e. Executive Order No. 11246 by Johnson (1965) - affirmative action -i.e. Clinton's "Don't ask don't tell", Obama's homosexuals can openly serve

MGMT 209 - ENTIRE SET

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