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139 Cards in this Set
- Front
- Back
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Statutory Law
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Used in Congress
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Common Law
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Decisions by judges
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Administrative law
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Laws passed by administrative agencies. Whatever they pass is considered law. If an agency exceeds their authority you can challenge it in court
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Cook v Rhode Island
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REHAB ACT
Fatty sues for being discriminated against. "No well qualified individual will be discriminated against". Court ruled it was a disability |
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Tugboat in Puerto Rico
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Flotilla Theory
The black box - put fish into one side and get a $ value of damages Dumb barge to the smart Tugboat |
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Federalism
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Federal government and state government. In conflict, federal law wins.
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Constitution Article 1
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Congress can borrow money, make rules, punish counterfeiting, establish post offices, punish piracy, declare war, raise and support armies, provide the calling forth of the militia.
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Constitution Article 3
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Congress can regulate loans to states
Regulate INTERSTATE COMMERCE |
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Separation of Powers
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Executive, Legislative, Judicial are independent and no overlap
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Clinton v Jones
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Separation of Powers.
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Supremacy Clause
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The clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land."
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Commerce Clause
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Congress to regulate commerce with foreign nations and among states. Interstate commerce
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Wickard v Filburn
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Commerce Clause
Farmer having his supply regulated |
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Us v Lopez
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Commerce Clause
No guns 1000 ft within a school |
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Brzonkala. Morrison
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Commerce Clause
violence against women |
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NLRB v Jones & Laughlin
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Commerce Clause
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Oregon Waste
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Police Power
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Police Power
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State has the right to protect the health and welfare of their citizens
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Undue Burden
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mudflaps, wine, spray paint and flow control
undue burden on interstate commerce? |
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1st Amendment
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Freedom of speech
Can't call Fire in the courthouse |
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Supremacy Clause
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The clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land."
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Commerce Clause
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Congress to regulate commerce with foreign nations and among states. Interstate commerce
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Wickard v Filburn
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Commerce Clause
Farmer having his supply regulated |
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Us v Lopez
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Commerce Clause
No guns 1000 ft within a school |
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Brzonkala. Morrison
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Commerce Clause
violence against women |
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NLRB v Jones & Laughlin
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Commerce Clause
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Oregon Waste
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Police Power
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Police Power
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State has the right to protect the health and welfare of their citizens
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Undue Burden
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mudflaps, wine, spray paint and flow control
undue burden on interstate commerce? |
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1st Amendment
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Freedom of speech
Can't call Fire in the courthouse |
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Nike
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1st Amendment
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4th Amendment
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Unreasonable searches
Need a warrant from a judge or magistrate |
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14th Amendment
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Equal protection clause. No state shall deny to any person within its jurisdiction the equal protection of the law
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5th Amendment
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Cannot be deprived of life, liberty or property without due process. Jury of your peers deciding if innocent or guilty.
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Original Jurisdiction
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Trial Courts. Have parties call witnesses. Build a case brick by brick
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Appellate Jurisdiction
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Identify the errors made by trial court. They can send back for a new trial, reverse the decision, reverse and have new instructions, or affirm decision.
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Appealing to Supreme Court
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File petition for a Certiorari "cert"
4 of 9 have to agree to hear the case. Otherwise the lower court verdict is final. |
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In personam jurisdiction
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Against you or a company
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In rem
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against a thing. ex. foreclosure
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Summons
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Piece of paper directing the defendant to appear in court to answer the complaint
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Long Arm Jurisdiction
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effecting someone's rights outside the state. Has to be minimum contact such that jurisdiction did not offend traditional notions of fair play. If they don't show up in court you can enforce the judgement
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International Shoe and Worldwide VW
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Long Arm Jurisdiction
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Zippo Case
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Can sue someone on a website based on degree of interactivity of the website
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Where can you sue a corporation?
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Anywhere they are doing business
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Forum Shopping
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File a suit in multiple locations and see which judge you get. Dismiss the other cases. Can't do that and will be sanctioned and fined if you do
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State Court
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Can bring any case in a state court that has not been exclusively reserved for the federal courts
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Exclusive Federal
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Bankruptcy, federal tax cases. Federal judge serves for life
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Cases in front of a federal court must:
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1) Parties on opposing sides must have complete diversity
2) Controversy must exceed 75,000 |
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Gafford v GE
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Motion to remove to federal court
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How did EJ mess up the case?
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Greed. Sued for 74,000 instead of 76,000. GE could change the location of the court.
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Inconvenient forum
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They can transfer the case to somewhere based on those points. Ex. lots of witnesses in one state, lots of evidence there
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How can to get a different judge?
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If the judge is biased or has some association with the other side
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State vs Federal Judges?
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State - elected
Federal - appointed for life |
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Marbury V Madision
IMPORTANT |
James Madison. Power of Judicial Review. Supreme court has the right to declare acts of the other branches of government are unconstitutional.
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Attorneys
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Need to go to law school and pass BAR to practice in a specific state.
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Private Practices
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Partners - paid on profits
Lawyers - paid on salary They are a business |
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Attorney-Client Privilege
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What you say to your attorney in confidence doesn't have to be said in trial. Has to be a legal matter.
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Quash jurisdiction
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Force the court to send the case somewhere else.
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Preemptory Challenges
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5-7 can ask the court to excuse one of the jury panelists for ANY reason.
You get unlimited number of challenges for cause though |
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Mock Jury
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Fake jury based on the demographic of the place the trial is taking place so you can get feedback.
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Shadow Jury
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sits in the witness box during the trial. Attorneys can talk to them at the end of the day
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Neurolinguistic Programming
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Tony Robbins. Say the same thing at the same spot with the same gesture to wire people's brain's to remember it
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Criminal Case
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12 jurors. Grand Jury only in criminal cases. Grand Jury decides if there is enough evidence to go to trial.
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Most important part of the trial for an Attorney?
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first 30 seconds
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X and Y Generations?
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X: 65-78
y:1980-200 |
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Indictment
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A formal accusation that a person has committed a criminal offense
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Negotiate
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90% settle before trial
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How to respond to a complaint
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Admit
Deny Lack information for each paragraph or have a counter claim |
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Third Party Practice
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Bringing in a third party
Ex. lab rat who ran onto the freeway. |
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Discovery
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Find out everything you can to prepare for the trail. Interrogatories and depositions. Request for documents even in electronic documents with strings of characters
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Pre-trial conference
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attorneys in the judges chambers. last opportunity to settle a case before trial
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Motion in Limine
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a question is harmful to our kids even if the question is asked. can forbid the other side to ask certain questions
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Cross examination
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plaintiff can only ask direct questions.
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Directed Verdict
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not enough evidence for the case and asks the judge to end the case
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Objection irrelevance
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any evidence that's introduced must make a fact more or less likely
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"Rip their face off!"
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Andy Fastow
Enron - CFO |
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Ethics manuals GE
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Spirit and the Letter
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Culpability Index
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If a company tries hard to avoid ethical problems they will get a lighter sentence
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Social Responsibility of Business
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Concern by business about both its profit-seeking and non-profit seeking activities
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Utilitarianism
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the ends justify the means
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Deontological
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don't rationalize, somethings are naturally wrong
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Bates v State Bar of Arizona
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Ethics. Advertisements on TV and were concerned that if pricing information about legal services became generally known the prices would go down.
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Profit-Oriented
"Greed is good" |
Maximize share holder return and profit
It motivates. Line from the movie Wall-street |
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Managerial Theory
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more than just share holder return, have to think about other people in the company
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Institutional Theory
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Corporations are like institutions and operate for the greater good not just for shareholders. broader duty to society
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Professional Obligation theory
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looks at business people much like other professionals and as part of that business managers have responsibility
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Regulation Theory
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Government should have a roll in running corporations. Corporations cannot be trusted and government employees must be on the board of directors.
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Good ethical reputation is _________?
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an asset
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Deontological
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don't rationalize, somethings are naturally wrong
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Bates v State Bar of Arizona
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Ethics. Advertisements on TV and were concerned that if pricing information about legal services became generally known the prices would go down.
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Profit-Oriented
"Greed is good" |
Maximize share holder return and profit
It motivates. Line from the movie Wall-street |
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Managerial Theory
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more than just share holder return, have to think about other people in the company
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Institutional Theory
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Corporations are like institutions and operate for the greater good not just for shareholders. broader duty to society
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Professional Obligation theory
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looks at business people much like other professionals and as part of that business managers have responsibility
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Regulation Theory
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Government should have a roll in running corporations. Corporations cannot be trusted and government employees must be on the board of directors.
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Good ethical reputation is _________?
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an asset
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Conditions President
Conditions Subsequent |
Preconditions you want satisfied before you are legally obligated
If product drops more than 25% you have the right to get out of contract by paying a termination fee |
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Contract
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A legally enforceable exchange of promises or an exchange of a promise for an act.
both statutory and common law |
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Express Contracts
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Either oral or in writing. Prove oral contract with witnesses and performance
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Implied
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Way things were done in the past is how they are done now. Painter painting two coats of paint.
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Contracts that deal with minors
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Voidable by a minor. Requires a signature by parents too because the parents can't get out of the deal.
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Unilateral
Bilateral |
Promise for an act
Promise for a promise |
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Quassi
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Not real. Somethign is missing.
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Equitable concept
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the court will do what's fair. If you take advantage the court will rectify it
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Offer
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must be communicated to the party intended. offer will lapse if you don't accept in time frame. Mirror image or counter offer whice you can accept of not accept
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Pamela Anderson
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Acceptance - she had her people agree to a move where it wasn't totally clear what kind of sexy time she had to have. Got out of the deal
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Consideration
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Courts will not enforce. Ex banks saying you're a good customer and don't have to pay last 3 months
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UCC 2-207
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Battle of the forms. Conditional Offer
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Stambovsky
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Fraud. Purchase of ghost house. Caveat Emptor - let the buyer beware
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Undue Influence
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standing on granny's oxygen hose as you make her sign the will
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Mistake
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unilateral and mutual. If you make a mistake on a number you can't get out of it. If the other party knew you made a mistake and took advantage of the situation court might grant you a mistake.
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Competency
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If you're completely incompetent you can't enter a contract
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Insanity
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Can't agree to a contract if you're insane
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Elements of a contract
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Offer
Acceptance Consideration Mutual Consent Legality |
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Gordon Gekko
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Character in movie who would be in favor of a profit oriented school of social responsibility
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Legality
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Court will not enforce illegal contracts
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Contracts that must be in writing:
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Sale of Land with leases for longer than 1 year.
Contracts to answer the debt of another Contracts not performable in one year sale of goods $500 or more |
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Oral agreements made prior to written contract can only be mentioned if ______
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1. substantial modification
2. clear up an ambiguity 3. prove fraud 4. collateral matter not germane to written agreement. |
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Donee
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Even though donee is not part of the contract, they have the ability to enforce it because it was for their benefit
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Cure right
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if i default on a payment you let me know and give me ex. 5 days to get back up to date.
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Plante v Jacobs
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Contractor who built wall a few inches off. Did not deviate substantially. Not regarded as default. went with DIMINISHED VALUE
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Commercial Impracticability
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was what happened to make this uneconomic foreseeable when you signed the contract.
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Ellenbogen & Goldstein v Brandes
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Condition Precedent
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Architectural systems inc. gilbane building company
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Commercial impracticability
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discharge of a contract
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performance, mutual agreement, condition precedent, condition subsequent, impossibility, commercial impracticability
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If the goods or tender of a contract fail to be perfect you can ____
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Reject the whole
accept the whole accept any commercial unit or units and reject the rest |
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Before filing a lawsuit think about
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attorneys fees
distractions time business relationship defendant's ability to pay alternative dispute resolution |
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Damages punitive
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breach in the contract is outrageous. Contract + fraud = outrageous
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Liquidated
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if you breach you owe this
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California and Hawaiian Sugar Company v. Sun Ship, Inc.
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Liquidated damages
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Nominal damages
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very small damages awarded to show that the loss or harm suffered was technical rather than actual.
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To recover lost profit _____
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reasonably foreseeable that lost profits would result from a breach
reasonable certainty of lost profit everything was done to mitigate damages |
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Shirley Parker v 20th century fox
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mitigation. once the other side defaults they are vulnerable.
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Types of remedies
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rescission
reformation specific performance injunctions |
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Rescission
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ghost guy didn't want the house. damages wouldn't have been adequate
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Reformation
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when a court reforms the contract to the party's expectations
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Specific Performance
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court orders the parties to go through with the contract.
Can ask a court to force the sale of a house |
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Injunctions
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can ask the court to order someone to stop something. Urgency involved
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Potter v Oster
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Equitable Remedies 65,000 - 10,000 in rental for the time he was in possession
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