Exam 2 outline EXC (1)

Exam 2 - Outline Chapter 5 Constitutional Law Bill of Rights v Article 1 Section 8: Established Congress, Commerce Clause, Enumerated Powers v Article 2: Executive Branch v Article 5: Amendments v 1st Amendment 1. Freedom of speech (includes commercial speech) 2. Freedom of religion (Establishment Clause & Free Exercise Clause) 3. free press 4. right to petition 5. right to assemble v 4th Amendment : Freedom from unreasonable searches and seizures, Exclusionary Rule, Warrant Clause v 5th Amendment : Prohibits taking of private property without just compensation, Due Process Clause — applying to the federal gov. v 14th Amendment : Due Process Clause — applying to states, Equal Protection Clause v Federalism : mixed mode of government, a combination of general gov (federal, etc.) and regional gov (state, etc.) v The Commerce Clause in the United States Constitution helps shape the practice of American business. v The exclusionary rule : Clarence, a police officer, suspects illegal activities in a commercial building. Unable to establish probable cause, he breaks into the building and confiscates a pound of cocaine. A judge declares that the evidence is inadmissible as the search was conducted without a warrant. v The Due Process Clause forbids the government from depriving citizens of life, liberty, or property without due process of law. v A mitigation refers to a situation in which the government allows land development only if the owner pays money to the government. v the roles of the Constitution 1. establishes a national government. 2. controls the relationship between the national government and the state government. 3. Defines and preserves personal liberty. 4. contains provisions to enable the government to perpetuate itself. Chapter 6 Contracts v Contract law principles in general are uniformly understood and applied across the United States. Contract law is governed by the common law and the Uniform Commercial Code "UCC." v The Common Law and UCC have their distinct differences and it are vital to know and understand them if you are in a position where you contractually transact often. v void: No enforceable contract at all voidable : One party has the option of either enforcing or voiding the contract. v the features of enforceable contracts 1) agreement 2) consideration 3) capacity 4) the genuineness of assent 5) legality of purpose v genuineness of assent parties must knowingly agree to the same thing (e.g., no mistakes or fraud) v bilateral contract a promise for a promise v unilateral contract a promise for an act v unconscionable contracts agreements that are so thoroughly one-sided that fairness precludes enforcing them. v the parol evidence rules in general, when a contract is in writing none of the parties can introduce parol evidence to add to, change, or contradict that contract when that evidence was expressed/created at the time prior to the writing. v third party beneficiary contracts a third party may enforce a contract where that contract was expressly intended to benefit the third party. v Remedies in equity When money cannot solve damages alone. v Remedies in law Compensatory damages (direct losses) Consequential damages (indirect losses) v Rescission and restitution (the result of fraud, duress, undue influence) purpose is to return parties to their original state before the contract. Chapter 7 Business Torts and Product Liability v Intentional torts They refer to all voluntary actions that harm one's protected interest. v Elements of intentional tort liability actions, the plaintiff may need to demonstrate one of three forms of intent: willfulness, knowing infliction of damage, or recklessness. v Negligent torts refer to actions that cause harm accidentally because of carelessness. v Strict liability torts refer to a no-fault concept where an individual or organization is responsible for harm without proof of carelessness. v Elements of strict liability are how the product was defective, how the flaw directly and causally caused the plaintiff's injuries, and how the deficiency rendered the product excessively risky. v Comparative negligence the percentage of the plaintiff's recovery is determined by weighing the relative negligence of the parties involved, all parties can collect damages minus their portion of fault, you can't collect if you are 50% or more at fault. v Contributory negligence If the plaintiff is found to have contributed in any way to his/her injury, even if that contribution is minuscule, he/she is unable to recover; if you have contributed even smallest in the incident you can't sue the other party, you can't collect if you are 51% or more at fault. v Battery An intentional, unwanted, harmful physical touching v Assault A show of force that would cause reasonable persons to believe that they are about to be a victim of a battery. v Types of intentional tort defenses : Consent, Mistake, Necessity, Self defense v Res Ipsa Loquitur "thing" speaks for itself, a type of accident that cannot happen unless someone had been negligent. v express warranties Exists if the seller of goods states a fact or makes a promise regarding the character or quality of good. If not followed, a breach of contract occurs.
v Implied warranty Automatically attaches itself to sale of goods unless it is disclaimed be the seller. ; 3 types; warranty of merchantability is a promise that the product is fit for its intended purpose; warranty of fitness for a particular purpose arises when a seller advises a customer that a product is suitable for a particular use and the customer acts on that advise. v Nominal damages are awarded to the innocent party when only a technical injury is involved and no actual damages. Chapter 8 Government Regulation and Business v Police power is the ability of state governments to protect the public's health, safety, morals, and overall welfare by controlling the movement of people and things inside their respective borders. v Reserved for the United States v Superiority/ Supremacy clause : The preemption of state and local laws by federal law renders them unconstitutional. Supreme Court decisions have supported the federal government's regulatory authority over conflicting state laws. Article IV, Paragraph 2 of the United States Constitution: "This Constitution, and the laws of the United States...shall be the Supreme Law of the Land" •Supreme Court decisions have affirmed federal government's regulatory authority over conflicting state rules. v Clause of Commerce : Gives the US Congress sole authority over domestic commerce and permits the federal government to regulate economic activities there. v In problems affecting the states' police power, the federal government's capacity to regulate interstate commerce is not the only one available. v The textbook Power of Federal Agencies includes a list of federal agencies that regulate business, along with information on their management and oversight. v Police power is the ability of state governments to protect the public's health, safety, morals, and overall welfare by controlling the movement of people and things inside their respective borders. v formed. Securities and Exchange Commission, Federal Communications Commission, and Federal Trade Commission (SEC); Executive departments and the minor organizations within them v Problems with Bigger Government and Agency Duties v •Information Agencies commonly compel companies to disclose information that would otherwise remain private. • Standards, where simply requiring information is deemed inadequate for the public Sneads, the government may establish minimum standards that the private sector must meet. •Product banishment , in rare circumstances products can be banned from the market. v State Police Power, •The 10th amendment, as we have seen, reserves to the states any powers which are neither specifically delegated to the federal government nor prohibited to the states. Recall that this reserved power is frequently characterized by reference to the public health, safety, morals, and general welfare of the people and often collectively referenced by the term "police power" these powers belong to the state, which often delegates a portion of them to local governmental units. v Purposes of Administrative Agencies Control of supply - Control entry into certain economic activities. Control of rates - Set the prices to be charged for services offered within their jurisdictions. Control of conduct - Compel or restrict business conduct. v Issues with Increased Agency and Government Duties v Reduce corporate productivity, restrict freedom, stifle innovation, increase compliance costs, cut employment, and implement insufficient or inadequate regulation. v Supply, rate, and behavior control, legislative, too. v Judicial Roles Seek legal action to uphold agency regulations Admin Law Judge (ALJ), rulemaking, adjudication, and administrative hearing. Chapter 11 - Antitrust law—Monopolies and Mergers v Merger analysis, horizontal and vertical types of mergers, monopoly analysis, v Monopoly evaluation Identify the product market, and the regional market, and calculate the market power, purpose, and defense of the defendants. v Analysis of mergers v Horizontal: Increased anti-competitive risks, Unilateral impacts, market power, and coordinated or collusive effects Market, Market Concentration, Negative Consequences, Easy Entry, and Defenses v Vertical: entails a partnership between a provider and a buyer Government concerns about anticompetitive impacts due to market foreclosure, which violates the Clayton Act. v Merger Types : Conglomerate and horizontal mergers v Distinctions between Vertical and Horizontal Mergers v Horizontal: Involves businesses that compete with one another for the same product and geographic markets. v Vertical: consists of two or more companies at multiple tiers of the same distribution channel v The FTC Act, the Clayton Act, and the Sherman Act v Clayton Act , 1: Section 7 provides the main legislative control. v Sherman Act , 2: Monopoly efforts that are prohibited. test of law. v FTC Act 3: Requests documentation on the merger's effects on competition from merging companies v The US Justice Department and Federal Trade Commission law enforcement related to mergers, merger virtues, and merger issues. v As an illustration, Merger Strengths two hospitals are merging because one does not want to spend money on an MRI scanner. This would result in some sort of dispute. v Issues with Mergers: Too much power in a few hands, which might cause competitors to back off and cause higher pricing owing to a more consolidated market, larger businesses may influence political situations via innovation. v The Goal of Antitrust Laws and International Antitrust Law: Global Antitrust Regulation v Extraterritoriality: According to the US Justice Department, international businesses that break American antitrust laws may be held liable. v Act to Improve Foreign Trade Anti-Trust (FTAIA) Excludes all international action from the Sherman Act's purview. excluding import-related trade. it has an impact on local or American exporters. v Why antitrust laws are necessary because big businesses undermine societal welfare and share market domination. v A Condition Precedent always comes before the creation of an interest. A Condition Subsequent always follows the vesting of an interest which is already complete.
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