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FIL 185 Final Exam
Terms in this set (63)
A sole proprietorship is an unincorporated business that is owned by an individual.
-Business does not have its own, independent legal identity
- Owner is personally liable for all business debts
The process of adjusting or settling disputes in a friendly manner through extra judicial means
• Intentional contact that is harmful or offensive
• Contact with skin, clothing, bag
• Contact can be by throwing something, shooting someone
• the encouragement to agree to contract
o What convinced parties to get into agreement
o What is being exchanged
• Questions to ask
o Was there a bargained for exchange? (legally enforceable)
o Do both parties have a benefit and a detriment?
o Is the consideration adequate?
• Is what being exchanged of approximate equal value
Good faith is fair and open dealing in human interactions.
Preponderance of the evidence
The greator weight of the evidence required in a civil lawsuit for the trier of fact to decide in favor of one side or the other.
Equal Employment Opportunity Commission. federal agency that administers and enforces civil rights laws against workplace discrimination
Courts authority to examine an executive or legislative act and to invalidate that act if it is contrary to the constitution.
Government may not establish, sponsor, or support religion.
Substantive Due process
Substantive limitations placed on the content or subject matter of state and federal laws by the due process clauses.
National Labor Relations Board. conducting elections for labor union representation and with investigating and remedying unfair labor practices
Association of 2 or more persons to carry on, as co-owners, a business for profit.
-Joint and several liability
- Partners are fiduciaries
- Not a taxable entity
- Fragile entities
a neutral 3rd party who comes in and offers suggestions to break the deadlock.
• (Civil Assault) Intent and reasonable apprehension of an imminent battery
• No contact involved
• Swing and a miss
• Words can be assault
• Imminent=very soon
Statute of Frauds
• When a contract needs to be in writing in order to be enforceable
o Prevent Fraud and perjury
o Prevent misunderstandings
o Emphasizes significance of a transaction
o Points out flaws or inconsistency in the contract
• Types of contract that require writing
o Sale of goods over $500
o Contract not performable within one year (memory fades)
o Sale of land
o Contract to answer for debt of another
o Pre-nuptial agreements
When a criminal defendant is prosecutor must prove the defendants guilt beyond a reasonable doubt.
National Labor Relations Act.
- Articulated that workers have the right to organize
- Unfair labor practices
- CBA (Collective bargaining agreement)
legal body that is empowered to conduct official proceedings to investigate potential criminal conduct and to determine whether criminal charges should be brought.
Order of a court which requires a party to perform a specific act, usually what is stated in a contract.
Free exercise clause
Government can't interfere with people exercising their religious belief.
Procedural due process
Aspects of the due process clause that relate to the procedure of arresting and trying persons who have been accused of crimes.
Misrepresentation of a material fact made with knowledge of the falsity of the statement:
- With intent to cause another to act
-Which in fact causes another to act
o One of five contract defenses
A corporation is a company or group of people authorized to act as a single entity and recognized as such in law. Founder assets are protected.
3 powers of co.
- Corporation can do whats provided for in articles of incorporation
- Can do what state law allows
- Implied powers
o Can do whats necessary to carry out their other powers.
a neutral 3rd party decides the outcome of the dispute
-Promise which the law is involved.
-Legally enforceable exchange of promises
- Written or oral
- 4 elements
o Mutual agreement
o Legality of object
o Capacity of parties
• Act taking unreasonable risk breaching a duty of due care causing injury
• Volitional act
o Failure to act
• Unreasonable risk
o Reasonable person standard
• Only negligence if someone gets hurt
Fellow servant rule
If a worker is injured by a co-worker, employer is not liable.
An individual in whom another has placed the utmost trust and confidence to manage and protect property.
Articles of incorporation
act as a charter to establish the existence of a corporation in the United States and Canada, and are filed with Secretary of State, or other company registrar.
Policy of courts to abide by or adhere to principles established by decisions in earlier cases.
Rule is designed to exclude evidence obtained in violation of a criminal defendants 4th amendment rights.
Level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to arrest and prosecute a person in criminal court.
Ultra hazardous activities, where risk can't be eliminated no matter how much care is used and it has to be a matter of common usage.
Ultra vines act
When a corporation goes beyond the scope of its powers .
2 duties of officers and board of directors
-Duty of care
o Must use the same standard of care in managing corporate affairs as they would in managing their own personal affairs
-Duty of loyalty
o Must avoid conflicts of interest
o Self dealing
o Inter locking directorates
o Corporate opportunity
Trying to create a contract with the business you own and the company you sit in as a board of director.
Two ways to prevent
- Disclose of conflict
- Abstain from voting
On the board of multiple companies
Corporate opportunity doctrine
legal principle providing that directors, officers, and controlling shareholders of a corporation must not take for themselves any business opportunity that could benefit the corporation
Clayton act (1914)
Cant use the Sherman act to prohibit unions from forming.
Forming a union
1. 30% of eligible employees must sign "authorization card"
3. NLRB hold a vote
4. NLRB will certify the union
5. Employer must enter into bargaining relationship with union
Unions parties must bargain in good faith
an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement.
- term and conditions of employment
can't be fired and can be permanently replaced
Unfair labor practice striker
can only be temporarily replaced.
- assumption of the risk
- Contributory negligence
- Fellow servant rule
Civil Rights Act (1964)
outlawed discrimination based on race, color, religion, sex, or national origin; especially in the workplace.
Equal employment opportunity commission (EEOC) tile 7 violation process
- must attempt conciliation
- File a lawsuit against employer
Title 7 protections
Discrimination on the bases of race, color, religion, sex, national origin.
1. Plaintiff must show:
- Member of a protected class
- Qualified for the job
- Suffered negative employment sequences
2. Defendant must show a legitimate business purpose for the decision
- Bona fide occupational qualification
3. Plaintiff must show that the defendants legitimate business purpose is a more pretext for illegal discrimination.
Bona fide occupational qualification
quality that employers are allowed to consider when making decisions on the hiring and retention of employees—qualities that when considered in other contexts would constitute discrimination and thus in violation of civil rights employment law. (Race is never a BFOQ)
Employers actions are neutral on their face, but they have a discriminatory result
The plaintiff must show
1. That the business practice has a disproportionally negative impact on a protected group.
2. Defendant must show the business necessity of the practice
3. Plaintiff must show that the business necessity is a mere pretext for illegal discrimination.
A willing act committed with substantial certainty that harm will result.
Reasonable person standard
Person that exercise average care, skill, and judgement in conduct.
- Covenant of quiet enjoyment
o Landlord must provide tenant with full possessory rights
- Implied warranty of habitability premises must adhere to a minimum standard of livability and landlord is generally responsible for any repair.
Idea/ expression dichotomy
Ideas are not copyrightable, but expressions of ideas are copyrightable.
Parties to a controversy develop and present their arguments, gather and submit evidence, call and question witnesses, and, within the confines of certain rules, control the process.
UAW v. Johnson controls
Women cannot work in lead factory due to them having babies and it be damaging to the children. BFOQ must relate to the essence or central mission employers business.
Palsgraf v. Long Island Railroad
To have negligence in cases of proximate cause, the injury must be foreseeable. Lady got struck by a falling object, due to a chain reaction started by the railroad assistant.
Marbury v. Madison
case in which the Court formed the basis for the exercise of judicial review in the U.S.. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the government.
Universal tort analysis
1. IS THERE A LEGALLY PROTECTED INTEREST?
2. WHAT IS THE NATURE OF THE DEFENDANTS CONDITION?
3. IS THERE A SUFFICIENTLY CLOSE CONNECTION BETWEEN THE DEFENDANT CONDUCT AND THE PLAINTIFF INJURY?
4. ARE THERE ANY DEFENSES?
1. Freedom of speech
2. Freedom of press
3. Freedom to petition
4. Freedom of religion
5. Freedom of assembly
Sherman antitrust act (1890)
Prohibited labor unions because unions were in restraint of trade.
Piercing the corporate veil
Taking away someones limited liability protection.
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