paper

  

Paper Assignment 3-5 pages 

 Topic= Persuasive paper on how a U.S. Supreme Court case influenced/influences the conduct of business. 

Need to relate class notes that I posted.  

Class Outline MGT 201

2/20/18

I. Overview for tonight’s class

II.

Housekeeping

III. Chapter 6 – Contracts

A. Contract = a legally enforceable promise

1. Can be in writing but many every day transactions are not

2. When a legally enforceable promise is broken, the injured party can seek damages = compensable loss.

3. Breach = the failure to perform duties or obligations required by the contract.

4. Recall from Chapter 1 that contracts are a form of private law between the parties to the agreement and not to the public at large.

5. Terms = the elements of contracts that address specific matters (ie quantity, price, delivery, etc.)

B. Formation of Contracts

1. Two sources- a. common law and b. Uniform Commercial Code(UCC)= model statute that provides uniform terms for contracts between merchants for the sale of goods. Helps avoid a battle of the forms scenario.

2. Common Law Formation= includes offer, acceptance, and consideration

a. Offer = common law function of setting forth something to which another party can accept

b. Acceptance= common law agreement as a mirror image of the offer.

c. If the acceptance alters the terms/conditions at all it is considered a counter offer= a rejection of the offer and a new offer made

d. Consideration= a bargained for exchange- often stipulated

3. For an offer to be valid, the contract must be for a legal purpose

4. And the parties must have the requisite capacity to enter into a contract.

a. Minors lack legal capacity

b. Cognitive defects

c. Involuntary impairment due to drugs or alcohol

d. These parties can disaffirm a contract.

C. Types of Contracts

1. Unilateral contract = the acceptance is only through action

2. Bilateral contract = a contract where both parties make a promise

3. Non-compete agreement= employer term preventing you from working for a competitor if you end your employment.

a. If part of the original negotiation, it is binding. If made only after you accept the position, then technically they owe additional consideration to make that binding.

b. Other limitations- geographical boundaries and reasonable time limitations.

D. Not Contracts at all-

1. Advertisements = simply an invitation to bargain= requests for people to make offers

Example- Pepsi Point promotion to buy a military jet for $700k- court found commercial was not an offer

2. Illusory Promise = a statement that make look like a contract, but because it is conditional, it lacks a firm commitment. ie- I agree to buy your car for $10K if I don’t find one cheaper.

E. Performance

1. Performance = undertaking the legal duties imposed by the terms of the contract.

2. When all parties have successfully fulfilled their contractual obligations the parties are discharged= released from additional requirements

3. When parties do not fulfill their contractual obligations they are said to be in breach= failure to perform duties and obligations required by the contract

4. Complete performance= fully performed the obligations

5. Substantial performance= acted in good faith and conveyed enough benefit to the other party to keep a valid contract with any defects to be remedied by monetary damages

6. Strict performance= a standard that requires complete and perfect performance

7. Personal Satisfaction= when a contract requires it, you can have a subjective standard govern performance

F. Defenses to contract performance/breach of contract- valid reasons why a contract cannot be performed:

1. Formation problems- lack of capacity

2. Illegal subject matter- gambling, assassination, drugs, etc.

3. Impossibility- ie if you agree to do business in a country that is under a trade embargo

4. Duress- a party was coerced into an agreement

5. Unconscionability- markedly unfair terms against a party with less sophistication

6. Undue influence- when one party is unable to exercise free will because of the influence of another- ie an agreement to transfer wealth by an elderly person

7. Violation of the Statute of Frauds- certain contracts must be in writing to be valid:

c. Real property

d. Promise to pay the debt of another

e. Contracts that cannot be performed within 1 year

8. Mistake

9. Misrepresentation

10. Statute of limitations- affirmative defense for waiting too long to bring a claim- 8 years in Ohio (this is a recent adjustment down from 15 years)

IV. Other practical considerations of contracts

A. As a matter of law, contracts are assignable and delegable unless the contract itself expressly restricts this.

1. Assignment = the ability to transfer contract rights to another party

2. Delegation = the ability to transfer contract duties to another party

3. Restriction on assignment= the clause in the contract that transfers the contract to another party. An example of this is a no sublease clause in a lease agreement.

B. Exculpatory Clauses = express limitation of actual or potential liability.

1. Types:

a. Hold harmless = you agree not to hold the other party responsible.

b. Indemnification = you agree to stand in the shoes of the other party and defend them.

c. Limitation of liability= you agree to a cap on the amount you can recover to a specific dollar amount or up to the amount paid under the contract.

2. Very common as a risk transfer method.

3. Read these clauses carefully and in business transactions, seek to negotiate to at least an even application.

C. Other contract clauses to be mindful of

1. Mandatory arbitration clause- a specified way to resolve disputes outside the court system.

2. Acceleration clause- clause that accelerates all payments due upon breach (seen in loan agreements)

3. Liquidated damages – clause that sets the amount of damage in the event of a breach.

4. Exclusivity clause- in vendor agreements, a requirement that you can only use that vendor for a particular service Macy’s v. Martha Stewart

5. Jurisdiction- requirement that disputes be resolved in a certain state (or country) using that state’s (or country’s laws)

6. Intellectual Property- transfer of IP to one party

7. Termination clause- always know your exit strategy

Class Outline MGT 201

2/6/18

I. Overview for tonight’s class

II. Chapter 5 The Constitution

A. Articles of Confederation- this was the first constitution of the US and it established a limited federal government. Two major shortcomings: (1) lacked the power to tax so government was frequently near bankruptcy; and (2) left the power to regulate commerce to the states so no uniformity.

B. Current Constitution was adopted in 1787- located in Chap 14 of your textbook.

1. Preamble-

2. Main body of the Constitution is concerned with structure including the separation of powers= division of government authority among the separate branches of government

a. legislative power to Congress (enact laws)

b. enforcement of laws to Executive branch/President

c. Interpretation of laws to Judiciary

3. Article I- grants specific powers to Congress/ the legislative branch; a bicameral legislature = 2 houses

a. House of Representative- 435 members proportionate to a state’s population; elected for 2 year terms; led by the Speaker of the House

b. Senate- 2 members per state for 6 year terms

4. Article I Section 8

(a)Commerce Clause-Congress has the power to regulate commerce;

(b) to make money (currency);

(c) to establish uniform law on naturalization= the process to become a US citizen;

(d) to establish uniform law on bankruptcies;

(e) to tax;

(f) to spend public revenue to meet broad objective = spending power

(g) to regulate patents and copyrights = copyright clause

(h) to make all laws which are necessary and proper to carry out these powers and other powers of gov’t = necessary and proper clause

5. Much debate over the scope of Congressional authority

a. Civil Rights Act of 1964 (prohibiting discrimination based on race, national origin and sex) was enacted with Congress relying on the Commerce Clause to pass the law. Heart of Atlanta Motel v. United States (1964)

b. ACA- Affordable Care Act upheld finding that the mandate was a tax and therefore constitutional under Article I section the power to collect taxes.
National Federation of Independent Business v. Sebelius
,  (2012)

c. National Minimum Drinking Age Act- required states to adopt a minimum age of 21 to purchase/possess alcohol. Congress withheld federal highway funds from any state that did not pass the “state” law.

6. Article II- establishes the executive branch of government- deliberately vague

7. Article III- establishes the judicial branch through our court system

8. Article VI- establishes the Supremacy Clause. The doctrine of preemption = permits federal law to trump a conflicting state law

C. Bill of Rights-the first ten amendments to the Constitution- almost immediately passed upon finalizing the Constitution, giving citizens certain inalienable rights. Tourists and international students are also entitled to full protection as well.

1. First Amendment- freedom of speech, religion and the press

2. Second Amendment- right to bear arms

3. Third Amendment- no soldier shall stay in a home without the owner’s consent in a time of peace.

4. Fourth Amendment- right against unreasonable search and seizures

5. Fifth Amendment- right to remain silent, no double jeopardy, and due process

6. Sixth Amendment- right to a speedy trial right to a jury trial (for criminal cases), right to counsel, right to confront witnesses

7. Seventh Amendment- right to a jury trial in certain civil cases

8. Eighth Amendment- right not to endure cruel and unusual punishment

9. Ninth Amendment- rights not conferred by the Constitution shall be retained by the people.

10. Tenth Amendment- reserves state power for those things not delegated to the federal government.

D. First Amendment-

1. Freedom of Religion Two clauses on religion-

a. Establishment Clause = prohibits the government from establishing a religion

b. Free Exercise Clause= prohibits government from preventing the free exercise of religion

c. Inherent conflict between the two clauses – particularly if free exercise is interpreted to mean religion can be practiced freely in places like public schools or government buildings

d. Wall of Separation= term coined by Thomas Jefferson to create a separation between church and state.

2. Freedom of Speech

a. Types of speech that enjoy protection

(1)Courts grant most deference to political speech = any speech dealing with politics or political figures (even if criticism)

(2)Symbolic speech (a form of political speech)= speech that is displayed or performed instead of spoken – ie flag burning

(3) Commercial speech= speech through corporations can take the form of (a) advertising (b) press releases and (c) campaign contributions and each has varying degrees of protection

3. Historically courts found that corporations had no protection under the First Amendment.

1. 2002 S.Ct. agreed to hear the case against Nike to determine whether or not press releases issued over sweatshop conditions in foreign factories were more like political speech protected by First Amendment. Case settled.

1. 2010 S.Ct held that corporations are persons and therefore entitled to engage in political speech. Four dissenting opinions around the notion that if a corporation can’t vote, it should not be allowed to influence elections.

4. Types of speech that do not enjoy protection:

(1) speech that incites panic – yelling fire in a crowded theater

(2) defamation= false statements that damage someone’s credibility or reputation- seen in two forms; libel= written and slander= spoken

(3) obscene speech

(4) threats or hate speech

Note: even though these types of speech don’t enjoy protection once spoken, doctrine of prior restraint cannot restrict speech before it is uttered

5. Time place and manner restrictions- can limit protected speech to reasonable parameters in order to further an important governmental interest. ie protests However, any restriction on First Amendment must be no greater than necessary to further governmental interests.

0. Concept of overbreadth= a law that restricts legal conduct as well as illegal conduct will typically be struck down.

E. Other government restrictions

1. Due Process= when government takes life, liberty or property fundamental fairness and decency standards apply– appears in both the Fifth Amendment and the Fourteenth Amendment

1. Applies only to government action not private entities like corporations

1. Procedural due process = government must use fair procedures

1. Substantive due process = legislation itself must be fair

1. Special application- Punitive Damages = damages awarded to plaintiffs to prevent similar conduct by the defendants in the future

Businesses use substantive due process to challenge punitive damage awards.

Example= award of $4million to a plaintiff for damages to his BMW resulting in lost resale value of his car- award not meant to make the plaintiff whole, but instead to punish BMW and prevent future conduct of a similar nature

BMW appealed and S.Ct. found the award was unconstitutional. The court considered 3 factors in making that determination.

1. Equal Protection Clause = requires states to provide equal protection of laws to persons within their jurisdiction. Fourteenth Amendment

1. Implicated when a law limits the liberty of some people but not others a form of discrimination

1. Supreme Court uses a guideline to determine equal protection cases using three standards of scrutiny

1. Minimal Scrutiny – when law involves economics, age, social relations

1. Intermediate Scrutiny- when law involves gender

1. Strict Scrutiny- when law involves race or a fundamental right (to vote, marry, etc.)

1. 6 variables for the standard of review come in pairs:

1. Minimal Scrutiny = government must show law is rationally related to a legitimate state interest

1. Intermediate scrutiny = government must show law is substantially related to an important state interest

1. Strict Scrutiny= government must show law is necessary to promote a compelling state interest

1. Examples

1. Minimal Scrutiny = minimum driving ages; government assistance programs to single indigent parents (and not wealthy individuals)

1. Intermediate Scrutiny = single sex education at Virginia Military Institute; male only military drafts

1. Strict Scrutiny = affirmative action cases (Grutter v. Bollinger)

Class Outline MGT 201

2/27/18

I. Overview for tonight’s class

II.

Chapter 7 Torts

A. Definition Tort = a civil wrong

B. 3 Types of Torts

1. Intentional Torts

2. Negligence

3. Strict Liability

C. Intentional Tort = where the defendant (tortfeasor) acts with the intent of causing a particular outcome.

1. Assault= an intentional act that creates apprehension or fear of immediate harm

2. Battery= any unconsented touching

3. Intentional Infliction of Emotional Distress= extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress

ie. A prank telling a parent their child had been killed.

4. Invasion of Privacy= the intrusion into the personal life of another without legal justification ie. Hackers getting photos from social media

a. Misappropriation= using another’s name or likeness without permission. A specific form of invasion of privacy.

5. False imprisonment = intentionally confining another person without justification

6. Fraud = misrepresentation of facts with reckless disregard for the truth

ie. Lying on your resume to get a job

7. Intentional tort against property

a. Trespass to land- if someone enters onto someone’s land without permission.

b. Nuisance- when someone interferes with someone else’s quiet enjoyment of land or interferes with public health.

c. Attractive nuisance- when a homeowner creates a dangerous situation for children ie pools, trampolines, etc.

8. Intentional tort against personal property

a. Trespass to personal property- taking another’s property without permission (ie borrowing a car)

b. Conversion –taking property from another permanently

D. Negligence

1. Elements-

a. Duty- because of special relationships, business have a duty to follow stated policies, landowners have a duty to keep their premises safe, parties to contract have a duty to abide by the terms and conditions

b. Breach- fail to discharge your duty

c. Proximate causation= when the injury flows from that breach of duty

d. Damages= a way to quantify the injury

2. Examples

a. car accidents

b. premises liability (slip and fall)

c. recreational activities

e. Malpractice= negligence committed by certain professionals

f. Mass tort= class action lawsuit – many plaintiffs suing a defendant (usually corporate)

E. Affirmative Defenses to negligence claims = a response by the defendant that raises a justification or excuse for the defendant’s conduct

1. Assumption of the risk= plaintiff voluntarily and knowingly assumed known risks. Ie. Bungee jumping, sporting events, recreational activities

2. Open and obvious = protects a landowner when a guest/customer is injured by an open an obvious danger or hazard

3. Contributory Negligence= when plaintiff contributed to his/her own injury

4. Good Samaritan laws= laws that shield someone who aids an injured person

F. Strict Liability= liability without fault

1. Ultrahazardous activities- ie transporting explosives, serving alcohol to minors or visibly intoxicated people.

2. Product liability= when there is a flaw in the manufacturing or design that makes the product unreasonably dangerous

G. Respondeat Superior- when an employee commits a tort in the workplace the employer is usually found responsible unless the employee was acting outside the course and scope of employment.

Class Outline MGT 201

3/6/18

I. Overview for tonight’s class

III. Chapter 8 Property

A. Definitions

1. Property= tangible and intangible items that can be owned

2. Ownership= the right to possess and the right to exclude others from use or possession.

3. Legal Person= a human being or a corporate entity that is recognized as having certain legal rights; in this case to own property.

4. Real property= land/real estate

5. Personal property= property that is not real property.

6. Tangible property = property that is in a physical form.

7. Intangible property= property that does not physically exist but is still subject to ownership principles ie intellectual property that we will cover in Ch. 9.

B. Methods of Acquisition of personal property

1. Production- if you create something you own it.

2. Gift= a voluntary transfer of property. The parties to a gift are a donor and donee. Inheritance is a gift through the donor’s estate.

3. Purchase= method of acquisition of personal property for ownership involving trade of valuable consideration ($).

4. Abandoned property= where the owner has intentionally relinquished the property, a person who finds the property owns it.

5. Lost or mislaid property- if the property is unintentionally relinquished by its owner, the owner can demand it back through a conversion action if necessary.

C. Methods of Acquisition of real property

1. Ownership rights are transferred by title- recording a deed of title places others on notice of property ownership.

2. Purchase

3. Inheritance and gift-

4. Adverse Possession= a method of acquiring ownership of real property of another when the following conditions are met:

a. the possessor must be in actual possession

b. the possession must be open and obvious

c. the possession must be hostile

d. the possession must be continuous

e. the possession must be exclusive

f. the length of time required by state statute must be met – Ohio is 21 years

D. Ownership Interests

1. Fee simple absolute- complete ownership

2. Fee simple defeasible- is subject to a condition

3. Life estate- a granting of real property for the lifetime of the grantee (possessory interest)

E. Duties of Landowners- depends on the status of the person entering their land

1. Trespasser-owner has a duty not to intentionally injure a trespasser

a. Special rule exists for children trespassers- attractive nuisance doctrine requires property owners to protect against things that attract curious children but are dangerous- ie the reason you have a fence around a swimming pool

2. Licensee= someone who has permission to be on the land. Landowner has a duty to warn a licensee of a known defect. ie- landlord has a duty to warn a guest of a tenant of a defective step on the porch.

3. Invitee= someone who has entered real property by invitation. Landowner has a duty to inspect for defects and correct those defects.

F. Special Considerations with real estate

1. You can grant someone subsurface rights

2. You can grant someone an easement which is simply a right to use your land. It is considered a non-possessory interest in real property.

3. Your property may have restrictions on land use- covenants, zoning ordinances, etc.

IV. Chapter 9 Intellectual Property

A. Definition = Intangible property which was created by human ingenuity.

IP has all the properties of personal property. In other words, the owner has the right to exclude others from use or possession.

Infringement= to interfere with someone’s IP rights.

B. Types of IP

1. Patent- covers inventions and processes (drugs, materials, equipment)

2. Trademark- covers words, marks, symbols

3. Copyright- covers creative works of authorship

4. Trade Secret- anything a company wants to keep confidential

C. Source of law= Article I section 8 of the Constitution- says Congress may promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their writings and discoveries.

D. USPTO= the system to protect patents and trademarks through a registration process.

E. Patents-

1. Last for a finite period of time (typically 20 years)

2. The person who holds the patent is a patent holder or patentee.

3. The patent system was historically based on a first to invent rule. If two people invented the same thing whoever can establish being first to invent gets to file the patent. This has been modified in 2013 under the AIA (America Invents Act) that is using a first to file rule. Now whoever files first regardless of who may have invented first, gets first rights to the patent.

4. Some life forms are patentable ie genetically modified plants and animals for research purposes. Humans are not patentable.

5. Process- attorneys who prosecute patents (apply for and advocate for) pass a separate patent bar and must have an engineering or science background. While the application is pending, an inventor can use the term “patent pending” on the invention.

6. Many patent applications for business method patents- ie one-click patent granted to Amazon.com to purchase items on the internet.

7. Licensing- the commercialization of a patented product that allows others to use the invention in a commercial way ie- Amazon licensed the one-click to Apple so Apple can feature this on its websites as well.

8. Compulsory licensing= countries can force a pharmaceutical drug licensing in light of a medical emergency ie antiretroviral drugs licensed to companies to produce generic drugs in the treatment of AIDs patients in Africa.

9. Patent infringement= a violation of a patent holder’s patent.

10. Patent trolls- a patent holding company that solely exists to sue potential infringers.

F. Trade Secrets-

1. last forever

2. are not filed- if they were they would be required to reveal the very secret they hoped to protect.

3. examples- soft drink recipes

4. to protect your trade secret against an infringer, you would file a claim of misappropriation.

5. You can reverse engineer to discover a trade secret (unlike a patent)

6. Uniform Trade Secrets Act (UTSA) is the law that protects trade secrets

G. Trademarks= any logo, mark, word or other characteristic that identifies a particular good or service.

http://quizible.com/quiz/famous-logo-quiz/3748

https://www.ohio.com/akron/pages/beer/warped-wing-welcomes-flyer-red

1. Lanham Act- law that protects trademarks

2. Colors, sounds and even shapes of containers can be trademarked if they are distinctive enough.

3. TM is a common law trademark and R in a circle ®is a registered trademark

4. Things that cannot be trademarked are government symbols (U.S. flag) things that are merely descriptive (kid’s meal) and anything immoral.

5. Domain names and cybersquatting- still cases of people claiming and selling it to rightful owner.

H. Copyright= the exclusive right of an author to their respective work to the exclusion of others.

1. Examples- movies, songs, books, photographs, works of art, scholarly papers, etc.

2. First Sale Doctrine- the rightful owner of a piece of copyrighted work can do with it what he/she wants including reselling it.

3. Fair Use Doctrine- an affirmative defense mainly for educational purposes. Depends on the (a) amount (b) nature (c) purpose and (d) effect on the market. Only a judge/jury can determine a fair use of what is otherwise technically copyright infringement.

http://i.perezhilton.com/wp-content/uploads/2011/04/mike-tyson-lawsuit-tattoo__oPt