Business Law Mid-term 1 Essay Questions

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BUSM246 Mid-term 1 review. Contains (mostly) possible short answer questions for mid term 1. Contains questions from Chapter 1, Criminal Law, and Contract Formation.

What is the function of Law?

Provide stability, predictability, and continuity.

What is "law?"

Enforceable rules governing relationships between individuals and society.

What are the Schools of Jurisprudential Thought?

The Natural Law School.
The Positivist Law School.
The Historical School.
Legal Realism.

Describe "The Natural Law School?"

Moral and ethical principles that are inherent in human nature that people can discover through the use of their natural intelligence or reason. People have natural rights; a "higher law" that applies universally. Opposite of Positivist Law School.

Describe "The Positivist Law School?"

Nothing is higher than the nation's positive law, no such thing as "natural rights" (opposite of natural law). Law tells you what rights you do and don't have; only applies to that nation's citizens. Laws must be obeyed, whether or not they're unjust, to prevent anarchy. Laws change, rights change.

Describe "The Historical School?"

Emphasizes the evolution of legal thought through the origin and history of the legal system. Precedents and past cases determine outcome/compensation.

Describe the school of "Legal Realism?"

The law is shaped by social forces and needs. Influenced the growth of the sociological school of jurisprudence. Law is a human enterprise and judge should take social and economic realities into account. Such judges are more likely to depart from past decisions/precedents. Also known as "sociological school."

What are the sources of American law?

1. Constitutional Law - supreme law of the land. The basis of law in the US.
2. Statutory Law - Enacted by legislative bodies. Uniform laws. Each state has the option of accepting/modifying a uniform law. Ex: UCC.
3. Administrative Law - Rules, orders, decisions of admin agencies. Includes federal, state, and local agencies.
4. Case Law and Common Law - Judge-made law, doctrines and principles announced in cases. Governs all areas not covered by statutory/administrative law. Part of our common law tradition; early English roots circa 1066.

Describe Courts/Remedies at Law

The usual legal remedy is monetary damages. English King's used to award land, items of value, or money as remedies.

Describe Courts/Remedies in Equity

When no adequate remedy at law is available (ie monetary remedy), judge may order:
1. Specific performance - order a party to perform an agreement as promised.
2. Injunction - crease a specific activity or undo a wrong.
3. Rescission - cancel a contract.

What is "Stare Decisis?"

To stand on decided cases; basically "precedents."

Describe deductive reasoning.

Major premise > minor premise > conclusion.

Describe linear reasoning.

Fact > fact > fact > fact > conclusion

Describe reasoning by analogy.

Case A vs. Case B.

What are the Classifications of Law?

1. Substantive Law
2. Procedural Law
3. Civil Law
4. Criminal Law
5. Cyberlaw

What is Substantive Law?

Laws that define, describe, regulate, and create legal rights and obligations.

What is Procedural Law?

The methods of enforcing the rights established by substantive law. Where/how/when do you file a lawsuit?

What is Civil Law?

The duties that exist between persons or between citizens and their governments, excluding the duty not to commit crimes. Beach of contract (tort action).

What is Criminal Law?

Wrongs committed against the public as a whole.

What is Cyberlaw?

Deals with issues raised by cyberspace/Internet transaction.

What are the 4 levels in the Model Penal Code?

1. Capital Offenses - maximum penalty is death.
2. First degree felony - max penalty is life in prison.
3. Second degree felony - max penalty of 10 years in prison.
4. Third degree felony - max penalty is 5 years in prison.

What's the difference between 1st and 2nd degree homicide?

1st degree requires that the homicide be premeditated and deliberated as opposed to a spontaneous act of violence. When no premediation or deliberation is present, but the offender acts with malice aforethought, the homicide is classified as 2nd degree murder.

What's manslaughter?

A homicide that is committed without malice toward the victim. Voluntary manslaughter occurs when the intent to kill may be present, but malice is lacking. Homicide is involuntary when it results from negligence, such as a drunk driver causing a death.

Describe the difference between larceny and robbery.

Robbery is taking/carrying away another's property through use of force or fear. Larceny is the intent to steal someone's property through the use of subterfuge (e.g. pick-pocketing).

Describe embezzlement.

Fraudulently appropriating funds/property when entrusted to those properties/funds. It's not considered robbery because fear/force is not employed; and it's not considered larceny because the property isn't physically taken from another.

In George v. Commonwealth of Viriginia, why was Dr. George convicted of embezzlement?

Dr. George was withholding funds from his employees salaries "for state taxes, in trust of the state," failed to remit them, and placed the funds in his personal account. The court established that he used for his own benefit funds that he held in trust for the state. He hoped to argue that the funds were just a debt, which would make this a civil case instead of a criminal prosecution.

In US v. Lyons, why was Lyons convicted of fraud?

Lyons held a charity fundraising event but wasn't truthful about what he was going to do with the funds they raised from donations. Virtually no money made it to any of the 6 charities mentioned in the fund raiser. He was convicted and sentenced to 15 years in prison.

List the defenses to criminal liability.

Infancy, intoxication, insanity, mistake, consent, duress, immunity.

What does RICO do?

Made it a federal crime to:
1. Use funds obtained from racketeering to purchase interest in an enterprise.
2. Acquire or maintain an interest in an enterprise through racketeering activity.
3. Conduct or participate in the affairs of an enterprise through racketeering activity.
4. Conspire to do any of the proceeding.

Describe the insanity defense.

Substantial capacity to appreciate the wrongfulness of their conduct. Employ M'Naghen test. Determine if the act was an irresistible impulse (resulting from a mental deficiency).

Describe entrapment.

Defense designed to prevent police from encouraging crime.

What is the "Exclusionary Rule?"

Evidence obtained in violation of certain constitutional rights is normally not admissible at trial. Example: Miranda v. Arizona.

Describe the significance of Miranda v. Arizona.

If a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms. Miranda was unaware of his rights at the time of his supposed interrogation.

Describe "fraudulent misrepresentation."

Requires:
1. A misrepresentation of a material fact.
2. An intent to deceive.
3. Justifiable reliance (individual relied on the statements made).
4. Damages.

The innocent party may either rescind the contract or fulfill the contract then seek damages for injuries resulting from the fraud.

What are the elements necessary to create a valid contract?

1. Agreement - parties must agree on the terms.
2. Consideration - value given in return for a promise/performance.
3. Legal Capacity - parties must have the legal ability to enter into a contractual relationship.
4. Legal Purpose - Cannot do something that is prohibited by federal/state law.

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