FIL 185 - Final Exam
Katrin Varner test
Terms in this set (59)
Unincorporated business owned by a single person
Association of two or more persons to carry on, as co-owners, a business for profit.
a company or group of people authorized to act as a single entity (legally a person) and recognized as such in law.
bring in neutral third party to offer ideas to solve problems and make it fair
Mediator - a neutral 3rd party who comes in and offers suggestions to break the deadlock
A neutral third party comes in to restore a dispute
- Very common in union disputes
-Its cheaper and faster, becoming more popular and common in any type of situation
-It doesn't become public but stays private
Intentional contact that is harmful or offensive
Intent, plus the reasonable apprehension of an imminent battery.
An agreement creating obligations enforceable by law
The inducement to contract; what's being exchanged
Statue of Frauds
The law that tells us when a contract must be in writing to be enforceable
An act taking an unreasonable risk, breaching a duty of due care, causing injury
allows condition to become unbearable where the tenant forces himself or herself to leave.
A standard of proof that must be surpassed to convict an accused in a criminal proceeding.
Fellow Servant Rule*
If a worker was injured by a co-worker, the employee could not be held liable
Preponderance of the Evidence
A standard of proof that must be met by a plaintiff if he or she is to win a civil action.
1935 - Wagner Act (National Labor Relations Act) (NLRA)
- Workers have the right to organize (form a union)
- Codified employer-employee relationship
- Established unfair labor practices
- Established the National Labor Relations Board (NLRB)
An individual in whom another has placed the utmost trust and confidence to manage and protect property or money.
1964-Civil Rights Act, Title VII
Equal Employment Opportunity Commission
Can file lawsuits through plaintiff
is made up of 16-23 members of the community who determine if there is probable cause to go to trial. It is important for citizen participation in the process of accusation, weed out meritless cases, and checks on govt. power
Articles of Incorporation
Articles make you recognized as a corporation
The power of courts of law to review the executive and legislative branches. A court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.
Where the court orders parties to comply with the terms of the contract
Let the decision stand. The policy of courts to abide by or adhere to principles established by decisions in earlier cases.
Government cant establish, support, or sponsor religion
Free Exercise Clause
Government cant interfere with people exercising their religious beliefs
Designed to exclude evidence obtained in violation of defendants 4th amendment (unreasonable searches/seizures by law enforcement). A rule that forbids the introduction of illegally obtained evidence in a criminal trial.
Substantive Due Process
Laws cannot be subjective they have to be fair and make sense. The due process clause in the constitution should protect the essential right of a citizen.
Can't try to confuse people; straight-forward only
Procedural Due Process
The principle that the government must respect all of the legal rights that are owed to a person according to the law
Reasonable grounds for belief that an accused person may be subject to arrest or the issuance of a warrant.
National Labor Relations Board (NLRB)
Govt agency that carries out the NLRA and overlooks/monitors them
Misrepresentation (failure to reveal something that needs to be known)
Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault.
- Example: Ultra hazardous conditions, demolition, etc...
an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement
- You HAVE to try to reach an agreement
Forming a Corporation
3.File Articles of Incorporation
4.Elect Board of Directors & write bylaws
What are the different sets of corporate powers?
1.Corp. may do what's provided for in its articles of incorporation
2.Corporation may do what state law allows
3. Implied Powers - can do whatever to start up a business
What is an ultra vires act?
- "beyond powers"
- Can't do that; set parameters (under implied powers)
What do we mean when we say that a corporation is a person under the law?
Historical idea - We treat them like people
- Own property
- Sue be sued
- Have due process protections (go through court)
- Charged with crimes
- FBI would also have to have a search warrant
Understand the legal liability of different types of business organizations.
•Sole Proprietorship - Owner is fully and personally liable for any Business Debt
•Partnership - Joint and Several Liability
•Corporation - Limited Liability - you are risking the amount of your investments
Officers and the Boards of Directors of corporations owe the corporation fiduciary duties. What are those duties?
Duty of Care - Same standard care in managing corporate affairs as in managing their own personal affairs.
a. Be less risky because it's not their money
Duty of Loyalty - avoiding conflicts of interest
ii. Interlocking directorates
iii. Corporate Opportunity Doctrine
You should understand the importance of the Clayton Act of 1914 as it relates to labor unions.
•First major federal law to favor labor
- Unions are not inherently in restraint of trade
- Start of favoring labor
Example: Price Fixing, unethical business practices
What are the mandatory subjects of collective bargaining?
Wages, Hours, and Terms + Conditions of Employment
What are the two categories of strikers and how can they be treated differently?
Economic Strikers - want more money or benefits
o Cant be fired, BUT you can be permanently replaced (almost never happens)
• If you work in a factory and there is a strike, they can hire replacement workers ("Crossing the Picket Line")
• Can potentially break down a union
Unfair Labor Practice Striker
o Can only be temporarily replaced
o Once strike is over you can have your job back
o Police and Firefighters and Air Traffic Controllers - VERY limited to go on strike!
• Why? People cant just replace these positions
What did the Civil Rights Act of 1866 do?
Guaranteed property and contract rights regardless of race.
MOST IMPORTANT ACT - must have property to have opportunity
Worker's Compensation law is different from state to state, but there are some basic principles that will be the same in all states. What are they?
• Workers Comp is generally compulsory (mandatory)
• You cant trade your workers comp for a raise or bonus.
• If you have a job, you are probably covered by workers comp.
Types of Injuries covered:
•Almost anything that you can show your job made you do.
•Show a connection of result from job and personal life
Workers comp is no fault. (don't care who is at fault). If you get hurt on the job, you have to go through Works Comp, but you can't make a lawsuit
• Good: it is efficient, you will get paid (guarantee)
• Bad: amount of money is less than what the jury would give, comp is more stingy, it's all listed out.
If the EEOC investigates a charge of discrimination and thinks that there is reasonable cause to believe that there has been a Title VII violation, what do they do?
•Must first attempt conciliation (mediation - bring in neutral third party to offer ideas to solve problems and make it fair)
•EEOC goes to court against the corporation, as the plaintiff
- Even though they have no authority
What types of discrimination are prohibited under Title VII? (In other words, what are the categories protected under Title VII?)
•Race, color, religion, sex, and national origin
- SEX WAS NOT LISTED
- Howard D. Smith added sex to make it toxic and it backfired on him! IRONIC
What is disparate treatment and what's the test for whether it's illegal?
Definition:- Discrimination right in the open
1. Plaintiff must show:
a.Member of a protected class (race, color, religion, sex, nat orig.)
b.Qualified for the job
c. Suffered a negative employment consequence
i. Not hired
iv. Bad Treatment
2.Defendant must articulate a legitimate business purpose for the decision.
a. Somebody else that applied that was more qualified
i. Bona fide occupational qualification (BFOQ)
1. Being catholic is a BFOQ to be a hired Priest for a Catholic Church... you HAVE to be Catholic.
ii. Religions organizations have a lot of leeway to discriminate on basis of religion
iii. Race is NEVER a BFOQ
Categories of BFOQ cases:
• hiring clergy,
• Cuban restaurant where they only hire Cuban wait staff to make it look like Cuba (national origin, illegal unless you make a good case)
• Restroom attendant, you can discriminate on sex (lockerooms (M vs. F))
o Refusal to Deal
• Customers are racist (courts don't like this) (NEED VERY POWERFUL BACKUP)
3. Plaintiff must show that the "legitimate business purpose" is a mere pretext for illegal discrimination
What is a BFOQ? What can never be a BFOQ?
Bona Fide Occupational Qualification
Race is never a BFOQ
What is disparate impact and what's the test for whether it's illegal?
Definition - Employment practice is neutral on its face, but it was a discriminatory result.
1. Plaintiff (employee alleging discrimination) must show Business practice has a disproportionate impact on a protected group
2. Defendant must show business necessity of practice
3. Plaintiff must show business necessity is a mere pretext for illegal discrimination
What are the 4 elements of a valid contract?
• Mutual Agreement
• Legality of object
• Capacity of the parties
What does the term intentional mean as it applies to tort law?
A volitional act committed with the substantial certainty that harm will result
-- No desire of harm is required, but you know that harm will result
Volitional act - a voluntary act
Garrett vs. Daily
6 year-old boy pulled chair out under a woman... little boy lost in court
Explain the reasonable person standard.
Negligence (is one big category)
• An act taking an unreasonable risk, breaching a duty of due care, causing injury
Reasonable Person Standard
Would "the reasonable person" take this risk?
• Yes - not negligence
• No - negligence
What are the names of the two primary duties that landlords have with respect to their tenants?
1.Covenant of Quiet Enjoyment - Landlord must provide tenant with full possessory rights
2.Implied Warranty of Habitability
- The premises must adhere to certain minimum standards of livability & landlord is generally responsible for repairs
Understand the ruling in the case of UAW v. Johnson Controls. What does this case tell us about employment discrimination?
•Example of trying to make it a BFOQ, not allowing women of child bearing age to work at the battery factory, because they would be exposed to mass amounts of toxic lead.
•To be a BFOQ it must relate to the essence or the central mission of the employer's business
•Outcome: Supreme Court said its illegal, and the motive of discrimination doesn't matter.
- It is discrimination no matter what.
What legal principle do we get from the Palsgraf v. Long Island Railroad case? Who wrote the majority opinion in the case?
Judge Benjamin Cardozo - injury must be Forseeable
What legal principle was established in the case of Marbury v. Madison?
Power of the courts to interpret the constitution
Marbury v. Madison
- John Marshall said it is Judicial review has that power
What are the four questions we ask in every tort case? (This WILL be on the exam. Make sure you know it!) (WORD BY WORD)
1. Is there a legally protected interest?
2. What is the nature of defendants conduct?
3. Is there sufficient close connection between the defendant's action and the plaintiff's injury? (Causation)
4. Are there any Defenses
What are the five protections granted by the First Amendment? (WORD BY WORD)
1.Freedom of Religion
2.Freedom of Speech
3.Freedom of Assembly - Freedom to gather together
4.Freedom of the Press - Who ever comes to power can not take over the social media
5.Freedom to Petition the Government for a redress of grievances - to tell them how you don't like what they are doing