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BLAW 3391 Pleasant Midterm

Terms in this set (135)

Uniform Commercial Code (UCC)
1952, a set of laws that govern various commercial transactions and are designed to bring uniformity to the laws of the states
stare decisis
"to stand on decided cases"
common law
the english system - recorded decisions that courts later rely on
precedent
an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.
statutory law
laws passed by congress or by state legislatures
ordinance
law passed by a local government
6 Sources of Law
1. constitutional law
2. executive orders
3. treaties
4. case law
5. statutory law
6. administrative law
treaties
written agreement between 2 or more countries. becomes legally binding when approved my 2/3 of senate
reporter
court decisions are published in book called reporter
citation
names of parties, volume numbers, name of the reporter, beginning page number
jurisdiction
authority of a court to hear a case
Sarbanes-Oxley
a federal statue that placed an obligation on upper management to monitor closely the financial dealings and disclosures of their firms and that established a board to oversee accounting practices in the US
resulted after Enron
Original
1. The first court that can hear a case
2. State system- County Courts
3. Federal System- District Courts
Appellate
1. Power to previous decisions
2. There are no trials at this level
3. Questions regarding law not questions of fact
Second: In personam jurisdiction
Jurisdiction over the person, extends over a certain location

Companies subject to where
1. it does business
2. Where HQ is
3. Where its incorporated
Third: Subject Matter Jurisdiction
Courts power to hear certain cases
States (broad) Federal (narrow)
Concurrent Jurisdiction means both Fed and state have jurisdiction
1. Federal Question
2. Diversity jurisdiction
Supreme Court
Highest court in federal system
9 justices
Limited original jurisdiction over some cases
Courts of Appeal
intermediate level in the federal court system
12 regional circuit courts
No original Jurisdiction strictly appellate
District Courts
Lowest level in federal system
94 judicial districts in 50 states
No appellate jurisdiction
original jurisdiction over most cases
morals
refer to an individuals own principles regarding right and wrong
values
beliefs or standards considered worthwhile, and from which a society derives its moral rules
whistleblower
an employee who discloses to the government, media, or upper management that the company is involved in wrongful or illegal activities

Erin Brockovich
Karen Silkwood
W. Mark Felt (Deep throat)
deep throat
leaked info about Watergate
Sole Proprietorship
Business owned and operated by a single person
Unlimited Liability
-Only pay taxes on income generated
-All after tax profit stays with the owner
-Owner bears all costs
-Unlimited Liability for debts
*Most popular in U.S.
joint venture
activity in which individuals become partners for only a short period of time or only for a single project
Limited Partnership
A business in which there are one or more general partners and one or more limited partners
-the general partners are still personally liable for the debts of the business, but the limited partners are not (No say in how company is run)
-Limited Partners have limited liability
-General Partners have unlimited liability
limited liability partnership (LLP)
is a partnership in which some or all partners (depending on the jurisdiction) have limited liabilities. It therefore exhibits elements of partnerships and corporations.

-In an LLP, one partner is not responsible or liable for another partner's misconduct or negligence.

-Individuals in a partnership are normally liable for filing personal income taxes
-
ex) law firms, accounting firms, medical practices
General Partnership
AKA partnership
Business owned and operated by two or more persons
-Each individual partner will be responsible for paying the income taxes on those profits (or deduct from losses)
-Each partner has unlimited liability
-partners have joint and several liability
corporation
a business formed as a separate legal entity
-By-laws (Provides rules for meetings of the corp)
-Quorum (Min # of shares needed to be present at a corporate meeting for action to be taken.

-Limited liability to shareholders
_courts hesitant to pierce corp veil

-Corporation are required to pay separate income taxes at a special corporate rate for any year during which profit is earned

-owned by shareholders
limited liability company (LLC)
relatively new organizational form available in most states that provides ALL of the owners with limited liability while allowing them to participate in the management of the business

taxed as a partnership
Cooperative
Pooling resources to get advantage in the market
Ex: Farmers pooling their crops together to ensure the best market price value
Joint Stock Company
is a partnership agreement in which company members hold transferable shares while all the goods of the company are held in the names of the partners.
Business Trust
is a business organization governed by a group of trustees, who operate the trust for the beneficiaries.
Syndicate
is an investment group that comes together for the explicit purpose of financing a specific large project.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
giving some employees the ability to continue health insurance coverage after leaving employment• Really expensive insurance coverage
• 18-29 months of coverage
• Employee pays entire premium
• But, in some cases it is better than nothing
1985
Employee Retirement Income Security Act (ERISA)
• Establishes minimum standards for retirement health and other welfare benefit plans
• Only applies to private employers that offer employers sponsored benefit plans to employees
• Does not require employers to offer plans
1974
Equal Employment Opportunity Commission (EEOC)
Federal agency responsible for administering law that prohibit discrimination in employment
real property
the ground and everything permanently attached to it

land, building, trees, and shrubs
personal property
tangible and intangible property that is not real property
inter vivos gift
a gift between the living that meets all of the legal requirements for a gift
gift in causa mortis
a gift given by a living person who expects to die from a known cause
accession
the right of an owner of property to increase in the property

ex) owner of cow owns calves born to the cow
severalty
ownership of a particular piece of property that is held by one person
joint tenancy
when two or more persons own equal shares of personal property with right of suvivorship
tenancy by the entirety
form of joint ownership of property by husband and wife in which both have a right to the entire property and the right of survivorship
tenancy in common
a form of joint ownership of property by two or more persons in which any owner's interest can be sold, transferred, or inherited
community property
property acquired during marriage that, in some states, belongs to both husband and wife
easement
a right or interest in land granted to a party to make beneficial use of the land owned by another
fee simple
when an owner of a freehold estate holds it absolutely
life estate
a freehold estate in which a person has ownership interest only for his or her lifetime
deed
the instrument, or document, that conveys an interest in real property between parties
eminent domain
when ownership of real property is taken by the government and the previous owner is compensated at the fair market value of the property
adverse possession
when title to land is acquired by a person's exclusive, continuous, open, known, and hostile use of the property over a period of time
winding-up period
the time after dissolution of a partnership during which there is an orderly liquidation of the partnership assets
articles of incorporation
a document that lists the general powers of a corporation
by-laws
a document that provides rules for the meetings of a corporation
quorum
the minimum number of shares necessary to be present at a corporate meeting in order for action to be taken

should be stated in by-laws
Subchapter S corp
a corporation that is taxed as a partnership

-The company must comply with tax regulations, such as the restriction that there be a limited number of shareholders, among other requirements
- Any business income or loss is "passed through" to shareholders who report it on their personal income tax returns

-Limited Liability
proxy
a legal document that transfers the right to vote in a corporate election to another person
fiduciary responsibility
a legal requirement that a person will exercise his or her authority while working under a duty of loyalty and a duty of care
Duty of care
a legal and ethical obligation placed upon a director to act diligently and prudently in conduction the affairs of the corporation
Duty of loyalty
a legal and ethical obligation placed upon a director to administer to the affairs of the corporation with personal integrity, honesty, and candor
Independent Contractor
A person or firm that provides services for others

Distinguish Employees vs. Contractors
-Employees usually cannot sue their employers for on-the-job injuries, whereas independent contractors can sue the person with whom they made the contract
operating agreement
the agreement between LLC members
Wagner Act
Adopted to encourage the formation of labor unions and provide for collective bargaining between employers and unions. Also, created the NLRB
Taft-Harley Act of 1974
Passed to restrict some of the powers the unions had acquired under the wagner act
Landrum-Griffin Act of 1959
Governs the internal operations of labor unions
National Labor Relations Board (NLRB)
An administrative agency formed to interpret and enforce the national labor relations act.
3 branches of gov
legislative
executive
judicial
legislative branch
consists of elected representatives who have the responsibility for passing laws that represent the will of the people
executive branch
consists of an elected executive, including his or her appointed staff
judicial branch
determines if there have been violations of the law and interprets the law if there are questions about what the law means in particular situations
Executive Agency
Generally within executive branch of government, under a "cabinet-level" department; also referred to as "cabinet-level" agency

Ex: Federal Aviation Agency (FAA) Food and Drug Administration (FDA)
Independent Agency
Governed by board of commissioners appointed by president, with "advice and consent" of U.S. Senate

Ex:Federal Trade Commision (FTC) Securities and Exchange Commision (SEC)
Hybrid Agency
Characteristics of an executive and independent agency

Ex: Environmental Protection Agency
Types of administrative agencies
Executive agency
independent agency
hybrid agency

"fourth branch of gov"
1st administrative agency: interstate
administrative procedures act (APA)
they limited their rule making (informal, formal, and hybrid rule-making)
freedom of information act (FOIA)
requires that federal agencies publish in federal register places where public can access agency information

any individual or business may make an FOIA request
Functions of Administrative Agencies
• Regulating Conduct
• Fulfilling Government Requirements
• Disbursing Benefits
• Providing Goods and Services
Administrative Hearing
a trial-like judicial proceeding without a jury, in which an administrative agency rules on matters of the law that the agency is charged with enforcing
government sunshine act
1. requires that agency meetings be open to public if agency headed by collegiate body - such agencies must keep records of closed meetings
2. federal agency may not disclose info about an individual to other agencies without written consent
internal revenue service test (IRS test)
aids individuals in determining whether a worker fits the status of an employee or an independent contractor
doctrine of employment at will
an employer may terminate an employee's employment at any time for a good reason, a bad reason, or no reason at all
defamation
a current or former may sue his employer for defamation if the employer provides info to a third party that is untrue, irrespective of whether it relates to the employee's job performance

slander if spoken
libel if written
negligence
a tort that allows a plaintiff to bring a lawsuit against a defendant under state law for causing personal injury or property damage
fair labor standards act of 1938 (FLSA)
a law that sets standards for the minimum age an employee can be, the minimum wages an employee can earn, and the rate at which an employee is paid if he or she works more than a certain number of hours in a work week

-4 exceptions
Executives
Professional Employees
Outside Sales associates
Administrative employees
occupational safety and health act of 1970
the federal statue designed to promote safety and health in the workplace

-Law created Federal agency Occupational Safety and Health Administration (OSHA) to administer provisions
OSHA
Requires that companies maintain records of employee work-related accidents and sicknesses and post data regarding these every February

Insects workplaces to be certain that these worksites comply with safety and health standards and imposes penalties if it finds any violations

Can impose penalties raging from fines to facility closings
worker's compensation
a type of insurance that provides that employees may recover damages for work-related injuries and illnesses without having to prove negligence on the part of the employer
exclusive remedy
an employee who sustains a work-related injury or illness can recover damages only through workers compensation and may not file a lawsuit against his employer

may sue if it was the employers intentional conduct that cause it
ergonomics
a science that deals with designing workplaces to promote safety and health
affirmative action plans
detailed records that demonstrate that an employers practices are non discriminatory
civil rights act 1964
protects individuals from illegal discrimination
title VII
portion of civil rights act that deals with discrimination in employment
equal pay act of 1963 (EPA)
a statue that prohibits any employer from engaging in wage discrimination based on sex
age discrimination act of 1967
federal statue designed to protect individuals from illegal discrimination in employment on the basis of age (40)
pregnancy discrimination act of 1978
federal statue designed to protect individuals from illegal discrimination in employment on the basis of pregnancy
americans with disabilities act of 1990 (ADA)
federal statue desined to protect individuals from illegal discrimination on basis of disability

"a physical or mental impairment that limits one or more of the major activities of life" - defined as disability by ADA
civil rights act of 1991
federal statue that provides additional remedies to an employee who can prove that he or she was a victim of discrimination

-An employee may collect punitive damages (in effect, to punish the employer).
-An employee may recover for emotional distress associated with being with the victim of discrimination.
collective bargaining agreement
a contract between a union and an employer that covers all terms and conditions of employment
wildcat strike
a strike without the unions consent
family and medical leave act of 1993 (FMLA)
federal statue that provides eligible employees with the right to take up to 12 weeks of unpaid leave for medical reasons or to care for a child, spouse, or parent
Federal Unemployment Tax Act (FUTA)
Passed in 1935
It is a state system that provides unemployment compensation to those who are qualified and lose their job

-You don't pay into this account like a retirement fund
-Employer pays benefit through taxes
national environmental policy act of 1970 (NEPA)
federal statue that requires that any project with significant federal involvement must have an approved environmental impact statement prior to the commencement of any work on the project (a damn, stadium, highway)
environmental protection agency
federal agency that conducts environmental research
They assist states and municipalities with grants and technical advice
Administers the federal pollution laws that cover businesses
Major Federal Legislations Protecting the Environment
o The Clean Air Act
o The Clean water Act
o The Comprehensive Environmental Response, Compensation (CERCLA)
clean air act of 1970
all states are required to develop air quality standards that are at least as rigorous as the federal standards

primary standards: protect human life and health

secondary: protect property, vegetation, climate and aesthetic values

Covers Stationary and Mobile pollution
clean water act of 1972
sets minimum standards for water purity

"fishable and swimmable"

Ultimate goal is to eliminate pollutant discharge in water
comprehensive environmental response, compensation, and liability act (CERCLA)

SUPERFUND
More commonly known as Superfund
-The law regulates dumping of waste onto land

-designates specific sites, placing them on the National Priorities List, and mandating that these locations be cleaned up by their owners

-The law also created a Hazardous Substance Trust Fund to help allay costs in addressing environmentally scarred land
Types of Law Suits by Private Citizens
1. Negligence- pollute frequently damage property

2. Nuisance- Condition that affects persons health

3. Trespass- Particle trespass
nuisance
a condition that affects a person's health, causes property damage, or interferes with a persons well being
acid rain
form of pollution cause by the discharge of sulfur emissions into the atmosphere
the resource conservation and recovery act of 1976 (RCRA)
governs the storage and disposal of toxic substances
greenhouse effect
the rising of global temperatures due to the increased burning of fossil fuels that has loaded the atmosphere with heat-trapping CO2
ozone layer
the release of chlorofluorocarbons into the air had damaged the ________?
remand
to send back
reverse
to overthrow, invalidate, repeal, or revoke
summary judgment
procedural device to promptly dispose of a case without a trial
affirm
to establish or reassert
bates v. dow agrosciences, LLC
-plaintiffs used a registered label that was to be safe around peanuts, they used it and it destroyed their peanut crops, not even the weeds
-both parties filed claims, if defendants were forced to change their labels then the state law would conflict the provisions of federal law
-district court and court of appeals agreed with defendant
*US Supreme court VACATED and REMANDED to appeals
teresa harris v. forklift systems, inc
-president of company repeatedly insulted her due to her gender and made sexual innuendos
-plaintiff complained, he continued, she quit
-plaintiff filed for creating an abusive work environment based on gender
-district court favored the defendant, court of appeals affirmed
*US Supreme court REVERSED and REMANDED
oncale v. sundowner offshore services, inc.
-employees forcibly subjected the plaintiff to sex-related actions on several occasions, he was physically assaulted threatened to rape
-district court granted the employers motion for a summary judgment, appellate court affirmed bc they were of same sex
*Court of appeals for 5th circuit was REVERSED and REMANDED in favor of plaintiff
apparent authority
a person or company inaccurately claims to be an agent or another person
administrative law judge (ALJ decisions)
presides over administrative hearings; may attempt to encourage parties to settle but has power to enter binding decisions
Administrative Law
Consists of subtractive and procedural rules created by administrative agencies
Administrative Agency
A governmental body responsible for the control and supervision of a particular activity of area of public interest
actual
is the legal authority a person has as the result of a law or contract
Stakeholders
People or groups who may be affected by a firms actions or decisions EX: employers, owners, shareholders, or customers
Bailment
Bailment is the process of placing personal property or goods in the temporary custody or control of another.
Bailee
The custodian or holder of the property, who's responsible for the safe keeping and return of the property
Bailor
The person who delivers or transfers the property to the bailee
Freehold Estate
person owns the land wither for life or forever
Leasehold Estate
A person has an interest in real property that comes from a lease.
A leasehold estate is not ownership, but only the right to possess real property, subject to the provisions of a lease.
Eminent Domain
Real property can be taken from an owner by action of government or other public authority for the benefit of the public.
Adverse Possession
Title to land also can be acquired as a result of a person's use of land over a period of time.
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