Legal Studies Final

Front 1

ch. 7: What are some functions of the contract law?

Back 1

A) to promote cooperation by converting situations with noncooperative solutions to situations with cooperative situations. B)Enable private agreements to be legally enforceable. C) a contract does not need to be a formal, written document

Front 2

Ch. 7: What are the two sources of contract law? What does each one encompass?

Back 2

Common Law (judge made law): affects many types of contracts, including real property, service, employment, and general business contracts
Legislation: Uniform Commercial Code which covers the sale of goods

Front 3

Ch. 7: How is a good defined?

Back 3

Tangible: can be touched or see
Moveable: can be carried from place to place
Personal Property: property that is not real estate
(real property-->land)

Front 4

ch7: What is a bilateral contract? Give an example.

Back 4

an agreement containing mutual promises
ex: Paul promises to sell his computer to Pearl if she promises to pay $1,000 for the equipment. When Pearl makes her promise in response to Paul's a bilateral contract is formed

Front 5

Ch7: What is a unilateral contract? Give an example.

Back 5

An agreement with only one promise. The maker of such a promise seeks an action rather than a promise in return
Ex: Pat tells Alex, "when you install my new stereo system, I will pay you $200." Pat no longer wants Alex's promise to perform, Pat seeks the actual performance

Front 6

Ch7: Are most business contracts bilateral or unilateral?

Back 6

Bilateral contracts

Front 7

Ch7: What is an express contract? Give an example.

Back 7

Arise from discussions in which parties actually discuss the promised terms of thier agreement
Ex: a negotiated purchase of land for construction of a manufacturing plant

Front 8

Ch7: What is an Implied-in-Fact contract? Give an example.

Back 8

Arise from the conduct of the parties rather than from words
Ex: asking an accountant for professional advice implies a promise to pay the going rate for this advice even though you do not make an express promise to pay for it

Front 9

Ch7: What is a quasi-contract? Give an example.

Back 9

When one party is unjustly enriched at the expense of another, the law may imply a duty on the first party to pay the second eventhough there is no contract between the two parties
Ex: If a debtor overpays a creditor $5,000, the debtor can force the creditor to return the amount by suing under the quasi-contract.

Front 10

Ch7: What is an enforeable contract?

Back 10

valid contracts; when courts uphold the validity of promises

Front 11

Ch7: What is an unenforceable contract?

Back 11

Void contracts; if a nonperforming party has a justifiable reason for noncompliance with a promise

Front 12

Ch7: What is the differnce between a void contract and a valid contract?

Back 12

A void contract is one that appears to be an agreement but lacks an essential requirement for validity and enforceability. A valid contract is when an agreement is enforceable because all the essential requirements are present

Front 13

ch7: What is a voidable contract?

Back 13

An agreement when one party has the right to withdraw from the promise made without suffering any legal liability. Enforceable until a party with the right to do so elects to void the agreement

Front 14

ch7: What is the difference between an executed contract and an executory contract?

Back 14

An executed contract is one in which the parties have performed thier promises.
An executory contract is when the parties have not yet performed thier agreement

Front 15

ch7: What remedies or solutions are available for breach of contract?

Back 15

Remedies for breach of contract:
-Negotiated settlement: parties resolving through voluntary negotiated settlements
-Abitration: parties agree to abide by the decision of a neutral 3rd party
-Comensatory Damages: court-awarded damages making the plaintiff whole again
-Specific performance: court-ordered remedy; subject matter of the contract is unique
-Rescission: each party to return the consideration given the other (often used in fraud)
-Nominal Damages: a small amount awarded by the court to the plaintiff for breach of contract which causes no financial injury to the plaintiff
-Consequential Damages: court-awarded damages arising from unusual losses which the parties knew would result from breach of contract
-Liquidated Damages: parties sometimes specify in the contract what the damages should be

Front 16

ch7: Who is responsible for carrying out mitigation when a contract is breached?

Back 16

Mitigation, which is the purposeful reduction of damages, is usually the responsibilty of the non breaching party

Front 17

ch7: What are the five essential elements of forming a valid contract?

Back 17

offer...Acceptance...Consideration...Capacity...Lawful Purpose

Front 18

ch7: What is an offer? Give an example.

Back 18

Contains a specific promise an a specific demand
Ex: "I will pay $15,000 for the electrical transformer" promises $15,000 and demands a specific product in return

Front 19

ch7: What does the term indefinitness relate to in an offer?

Back 19

Contractual terms must be definite and specific. Most advertisements and catalog price quotes are considered too indefinite to form the basis of a contract

Front 20

ch7: How is acceptance determined in a bilateral contract? A unilateral contract?

Back 20

Bilateral contract: acceptance is obtained by the offeree's making the required promise
Unilateral contract: accepted by performing a requested act, not by making a promise

Front 21

ch7: What is a counteroffer?

Back 21

An offer made in response to another's offer. Usually made in place of an acceptance. Usually terminates an offer.

Front 22

ch7: What are other issues relating to the importance of acceptance in contract formation?

Back 22

-Mirror Image Rule: for an acceptance to create a binding contract, standard contract law requires that the acceptance must "mirror" the offer (match it exactly. If the acceptance changes the terms of the offer or adds new terms it is a counteroffer
-Silance Is Not Acceptance: silence alone is not acceptance; the offeree has no usual duty to reply to the offer even if the offer states that the offeror will treat silence as acceptance. Exceptions to this are prior course of dealing and conduct of the buyer
-Deposited Acceptance (MailboxRule): the acceptance usually binds the parties when the offerer dispatches it; since the offeree frequently mails the acceptance, the acceptance becomes binding when it is "deposited" with the postal service

Front 23

ch7: Are all promises enforceable through legal action?

Back 23

No, there must be some incentive or inducement for a person's promise or it is not binding

Front 24

ch7: What is an acceptance?

Back 24

Acceptance of an offer is necessary to create a valid, enforceable contract

Front 25

ch7: What is consideration?

Back 25

An essential element in the creation of a contract obligation that creates a detriment to the promise or a benefit to the promisor

Front 26

ch7: Is a contract valid if there is no exchange of consideration between the parties?

Back 26

No it is not valid with no exchange of consideration

Front 27

ch7: What is an important part of consideration?

Back 27

Consideration must be bargained for...sometimes parties to an agreement specify an insignificant consideration in return for a great one

Front 28

ch7: Provide an example of preexisting obligation.

Back 28

many contractual modifications are not enforceable because there is lack of consideration...if Gerald agrees to paint your house for $2,000 and halfway through the job he insists on receiving another $1,000, what consideration would you receive if you agree to pay the additional amount

Front 29

ch7: What is capacity? What three classes of persons traditionally lack capacity to be bound by contractual promises?

Back 29

Refers to a person's ability to be bound by a contract.
-Minors: anyone under 18; usually cant be bound legally to contractual promises unless those promises involve necessaries of life (food, clothing shelter)
-Intoxicated Persons
-Mentally Incompetent Persons

Front 30

ch7: What are other situations involving voidable contracts?

Back 30

1.Fraud: involves an intentional misstatement of a material fact that induces one to rely justifiably to his or her injury
2.Misrepresentation: simply a misstatement without intent to mislead
3.Duress: force or threat of force; may by physical or economic
4.Undue Influence: occurs when one is taken advantage of unfairly through a contract by a party who misuses a position, relationship, or legal confidence
5.Mutal Mistake: when each party misunderstands something very basic and material about a contract
6.Unilateral Mistake: arises when only one of the parties to a contract is wrong about a material fact

Front 31

ch7: Does a contract need to have a lawful purpose to be valid?

Back 31

Yes, contracts that require commission of a crime or tort or violate accepted standards of behavior are void

Front 32

ch7: What is the statute of frauds?

Back 32

The law requiring that certain contracts be in writing; designed to prevent frauds arising from oral contracts

Front 33

ch7: What types of contracts are required to be in writing due to the statute of frauds?

Back 33

1.Contracts involving an interest in land
2.Collateral contracts to pay the debt of another person: a colateral promise is a secondary or conditional promise; an example would be a shareholder paying off an organization's debt
3.Contracts that can't be performed within one year: an oral contract for services that last 20 months is not enforceable
4.Sale of goods contracts for $500 or more: under the UCC, the statute of frauds covers the sales of goods of $500 or more

Front 34

ch7: When is interpretation on contract terms necessary?

Back 34

when a disagreement about contractual performance exists

Front 35

ch7: Do courts interpret handwritten terms, printed terms, or typed terms first?

Back 35

handwritten is the best evidence of intention-->then typed terms-->then printed terms

Front 36

ch7: What is trade usage?

Back 36

A word in a contract may have a different meaning than how it is originally defined
Ex: a contract in the wine trade industry may use the term rose but is really referring to a type of wine instead of the flower

Front 37

ch7: Who is the assignor? Who is the assignee?

Back 37

An assignor is one of the original contracting parties and assigns rights or duties to 3rd parties. An assignee is the 3rd, who is not an original contracting party, to whom contractual rights or duties are transferred. The party may enforce the original contract

Front 38

ch7: What is the duty of performance? When does it become binding?

Back 38

Each party must perform the consideration promised to the other; failure to do so results in a breach. A duty becomes binding at the time the parties reach agreement under contract

Front 39

ch7: If a present duty has arisen and has not been discharged, will nonperformance be a breach?

Back 39

Yes

Front 40

ch7: What three levels of specific performance of contracts do courts generally recognize?

Back 40

The three levels include:
- Complete Performance: recognizes that a contracting party has fulfilled every duty required in the contract
- Substantial Performance: represents a less than complete performance, the contracting party has fallen short of performing
- Material Breach: a level of performance below what is reasonably acceptable

Front 41

ch8: What does tort mean?

Back 41

Tort means "wrong"; legally a tort is a civil wrong other than a breach of contract

Front 42

ch8: What are the different types of intentional torts?

Back 42

1.Assault and Battery
2.Intentional Infliction of mental distress
3.Invasion of Privacy
4.False Imprisonment and Malicious prosecution
5.Trespass
6.Conersion
7.Defamation
8.Faud
9.Common Law Business torts

Front 43

ch8: What is the difference between an assualt and a battery? Give an exmple of both.

Back 43

An assault is the placing of another in immediate apprehension for his or her physical safety, including the expectation that one is about to be physically injured.
-Ex: a store manager who threatens an unpleasant customer with a wrench
A battery many times follows an assault; an illegal touching of another; touching done without justification and without the consent of the person touched. The touching does not need to cause injury
- Ex: The store manager actually hitting the customer with the wrench

Front 44

ch8: What does intentional infliction of mental distress mean? Give some examples.

Back 44

It is a battery of the emotions; arises from outrageous, intentional conduct that carries a strong probability of causing mental distress to the person at whom it is directed
- Ex: Frequent, abusive, threatening phone calls by creditors
- Ex: employees who have been discriminated against or fired

Front 45

ch8: For a mental distress tort, what muct the plaintiff show besides just mental distress?

Back 45

Plaintiff must show physical symptoms, such as headaches or sleeplessness

Front 46

ch8: The tort for invasion of privacy is defined as? What are some examples of invasion of privacy?

Back 46

A tort based on misappropriation of name or likeness, intrusion upon physical solitude, or public disclosure of objectionable, private information
- Ex: Many advertisers have been sued by individuals when pictures of them have been
used without authorization to promote products
- Ex: Illegal searches or invasions of home or possessions, illegal wiretapping, and persistent and unwanted telephone calls. Also, employers who enter their employee’s homes without permission
- Ex: Publishing in a newspaper that the plaintiff does not pay his or her debts

Front 47

ch8: What is false imprisonment? What guidelines must a merchant follow when detaining a shoplifter?

Back 47

The intentional, unjustified confinement of a no consenting person. Merchants must not use unnecessary use of force, must not lack reasonable suspicion, and must not confine the suspect for an unreasonable length of time

Front 48

ch8: What is malicious prosecution?

Back 48

Often called false arrest; arises from causing someone to be arrested criminally without proper grounds, usually to harass someone

Front 49

ch8: What is trespass? Give some examples.

Back 49

To enter another’s land without consent or to remain there after being asked to leave; often a crime as well as a tort
- Ex: When something (such as pollution) is placed on another’s land without consent
- Ex: Union pickets walking on company property
- Ex: customers refusing to leave a store after being asked to do so

Front 50

ch8: What is conversion? Give some examples.

Back 50

The wrongful exercise of power and control over the personal (non-land) resources that belong to another
- Ex: Stealing something from an employer and even purchasing something that has been stolen (even if it was innocently)

Front 51

ch8: What is defamation? What are the two types of defamation?

Back 51

The publication of untrue statements about another that hold up that individual’s character or reputation to contempt and ridicule; must be known to third parties
- slander: oral defamation
- libel: written defamation or defamation published over radio or television

Front 52

ch8: What rules apply to the news media becuase of the 1st Amendment?

Back 52

The media are not liable for the untruths they print about public officials and public figures unless plaintiffs can prove that the untruths were published with “malice” (evil intent)

Front 53

ch8: What is fraud? Give some examples.

Back 53

An intentional misrepresentation (lie) of a material fact that is justifiably relied upon by someone to his or her injury; the victim must suffer some injury, usually loss of money
- Ex: lying about assets or liabilities in order to get credit for a loan
- Ex: A defendant who intentionally concealed an important fact and has introduced reliance on it to the plaintiff’s injury

Front 54

ch8: What are some common law business torts?

Back 54

Injurious Falsehood and Intentional Interference with Contractual Relations

Front 55

ch8: What is injurious falsehood? Give some examples.

Back 55

Consists of the publication of untrue statements that criticize the business owner’s product or its quality
- Ex: You can be sued for making statements about a competitor’s product that the competitor considers false

Front 56

ch8: What does intentional interference with contractual relations mean? Give an example.

Back 56

The tort of causing another to break a contract
- Ex: When one company raids another company for employees. If employees are under contract to an employer for a period of time, another employer cannot induce them to break their contracts

Front 57

ch8: What is the second major area of tort liability?

Back 57

Negligence; unreasonable behavior that causes injury; takes place when one who has a duty to act reasonably acts carelessly and causes injury to another

Front 58

ch8: What are the five separte elements that make up negligence?

Back 58

A) Existence of a duty to care owed by the defendant to the plaintiff, B) Unreasonable behavior by the defendant that breaches the duty, C) Causation in fact, D) Proximate causation, E) an actual injury

Front 59

ch8: What are the five separte elements that make up negligence?

Back 59

A) Existence of a duty to care owed by the defendant to the plaintiff, B) Unreasonable behavior by the defendant that breaches the duty, C) Causation in fact, D) Proximate causation, E) an actual injury

Front 60

ch8: What is duty of care? Give an example.

Back 60

A person doing something has a legal duty to act reasonable to avoid injuring others; usually arises out of a person’s conduct or activity
- Ex: Driving a car or manufacturing a product, you have a duty not to injure others by unreasonable conduct

Front 61

ch8: What is the negligence of porfessionals called?

Back 61

malpractice

Front 62

ch8: What are some examples of unreasoable behavior that breaches a duty?

Back 62

- Ex: A store manager ordered his employees to mop the floors during regular store hours instead of after the store is closed to save over time pay. A customer slipped on the wet floor and sued the store.
- Ex: A Wal-Mart employee sold a shotgun to man who used it to kill his wife even though the man had a federal form filled out by himself indicating he was under a restraining order. Federal laws forbids those under restraining orders from purchasing guns

Front 63

ch8: What is wilfull and wanton negligence? Give an example.

Back 63

A special type of aggravated negligence which shows an extreme lack of due care; the injured plaintiff can recover punitive damages as well as actual damages
- Ex: Negligent injuries inflicted by drunk drivers

Front 64

ch8: What is causation in fact? Give an example.

Back 64

A person’s failure to use reasonable care must actually have “caused” the injury; the plaintiff must prove that the defendant actually caused the injury
- Ex: a motorist stopped on the roadside changing a tire is hit by another motorist driving carelessly. What caused the accident? Was it the inattention of the second motorist or the fact that the first motorist had a flat tire?

Front 65

ch8: What is proximate cause? Give an example.

Back 65

More accurately termed legal cause; represents the proposition that those engaged in activity are legally liable only for the foreseeable risk that they cause
- Ex: it is reasonable to expect, thus foreseeable, that a collapsing hotel walkway should injure those on or under it. HOWEVER, it is unforeseeable that someone a block away, startled upon hearing the loud crash of the walkway, should trip and stumble into the path of an oncoming car

Front 66

ch8: What are the two principal defenses to an allegation of negligence?

Back 66

Contributory negligence and assumption of risk

Front 67

ch8: What is contributory negligence?

Back 67

Absolutely denied the plaintiff from recovery if the plaintiff’s own fault contributed to the injury “in any degree, however slight”

Front 68

ch8: What is comparative resonsibility?

Back 68

A doctrine that offsets the harsh rule of contributory negligence, which states the plaintiff’s contributory negligence does not bar recovery. It merely compares the plaintiff’s fault with the defendant’s and reduces the damage award proportionally
- Ex: An Atlanta plaintiff was awarded $3.1 million after being run over and dragged by a bus. The jury then reduced the damage on the basis that the plaintiff contributed to his own injury by failing reasonably to look out for his own safety in area where buses come and go

Front 69

ch8: What is the assumption of risk defense? Give an example.

Back 69

Arises from the plaintiff’s knowing and willing undertaking of an activity made dangerous by the negligence of another
- Ex: People who attend hockey games know of past injuries caused by hockey pucks flying into the crowd. Fans take on the assumption of risk that they could possibly be injured by a flying puck

Front 70

ch8: What is strict liability?

Back 70

Stands for the legal responsibility for injury-causing behavior that is neither intentional nor negligent

Front 71

ch8: What is strict products liability?

Back 71

Any retail, wholesale, or manufacturing seller who sells an unreasonably dangerous defective product that causes injury to a user of the product is strictly liable
- Ex: a forklift you are using at work malfunctions because of defective brakes and you run off the edge of the loading dock and are injured, you can sue the retailer, wholesaler, and manufacturer of the product for strict liability

Front 72

ch8: Who does strict products only apply to?

Back 72

Applies only to “commercial” sellers; such as the retailer, wholesaler, and manufacturer of a product. Also included are suppliers of defective parts and companies that assemble a defective product

Front 73

ch8: What is the difference between production defects and design defects?

Back 73

Production Defects: arise when products are not manufactured to a manufacturer’s own standards
- Ex: Defective brakes on a new car
Design Defects: occur when a product is manufactured according to the manufacturer’s standards, but the product injures a user due to its unsafe design
- Ex: lack of adequate warnings concerning inherently dangerous products

Front 74

ch8: Does strict liability apply to transportation of ultrahazardous activity?

Back 74

Yes, such as the transporting of explosives and poisons

Front 75

ch8: What are dram shop acts?

Back 75

Imposing strict liability upon tavern owners for injuries to third parties caused by their intoxicated patrons

Front 76

ch8: What are compensatory damages? What are the three types?

Back 76

Damages awarded tort cases compensating the plaintiff for injuries; purpose is to make the plaintiff whole again, at least financially
- Past and future medical expenses
- Past and future economic loss (including property damage and loss of earning power)
- Past and future pain and suffering

Front 77

ch8: What are punitive damages?

Back 77

Arise from intentional torts or extreme “willful and wanton” negligence; by awarding punitive damages, courts or juries punish defendants for committing intentional torts and for negligent behavior considered “gross”; the defendant’s motive must be “evil” or malicious

Front 78

ch8: What are two alternatives to the tort system?

Back 78

Contingency fee and worker’s compensation

Front 79

ch8: What is the contingency fee?

Back 79

Permit’s a plaintiff to sue without first having to pay an attorney, encouraging litigation

Front 80

ch8: What is worker's compensation? Give an example.

Back 80

States statutes designed to protect employees and their families from the risks of accidental injury, death, or disease resulting from their employment

Front 81

ch8: What three defenses give an employer means of escaping a worker's comp tort?

Back 81

Assumption of Risk
- if an employee was aware of the dangers that existed from completing a job
Contributory negligence
- if the injury were caused contributory negligence of the employee as well as the negligence of the employer
The fellow-servant rule
- if the injury occurred because of the negligence of another employee

Front 82

ch9: What is the purpose of criminal law?

Back 82

Provides a means to punish wrongdoers who affect ownership of property

Front 83

ch9: Do crimes only involve acts of violence?

Back 83

No, oftentimes they can be crimes committed by employees of a business

Front 84

ch9: What is a white-collar crime? Give some examples.

Back 84

Defined as any illegal offense that is committed in a business or professional setting in order to achieve personal gain
- Ex: Accounting fraud, Conspiracy, Forgery, Income tax evasion, Insider trading, money laundering, price fixing

Front 85

ch9: What is the difference between felonies and misdemeanors?

Back 85

Felony: punishable by fine or imprisonment in a penitentiary for a period of one year or more; more serious than a misdemeanor
Misdemeanor: punishable by a fine or jail sentence of less than one year

Front 86

ch9: What is intent?

Back 86

An important element of many criminal laws; indicates that parties meant to do what they did

Front 87

ch9: What is the difference between indictment and information?

Back 87

Indictment: a document issued by a grand jury formally charging a person with a felony
Information: a charge filed by the government which usually commences misdemeanor cases

Front 88

ch9: What two terms are used to define criminal intent?

Back 88

Willfully: an act is committed voluntarily and purposefully with the specific intent to do something
Knowingly: an act is done voluntary and intentional, not because of mistake or accident

Front 89

ch9: What is nolo contendre?

Back 89

The last plea, meaning “no contest” which allows sentencing just as if the defendant pleaded guilty or been found guilty; helps the defendant avoid the cost of trial

Front 90

ch9: What are some characteristics of a grand jury?

Back 90

Normally consists of 23 citizens who live within the jurisdiction of the court doing the trial, at least 16 persons must be present to hear and vote on cases, to return an indictment a majority of the grand jury must find that a crime has been committed and the evidence is sufficient for a trial

Front 91

ch9: What is probable cause?

Back 91

The reasonable basis on which law enforcement officials convince a judge that criminal activity has occurred. That must be satisfied before a judge will issue a criminal search warrant

Front 92

ch9: What is presumption of innocence?

Back 92

To be presumed innocent until found guilty by a petit jury; even an indicted person is entitled to this

Front 93

ch9: What are civil liberties?

Back 93

Protections from the power of government, including persons accused of crimes

Front 94

ch9: What does the fourth amendment protect individuals and corporations from?

Back 94

Illegal searches and seizures

Front 95

ch9: What are unreasonable searches and seizures?

Back 95

Occurs when a valid warrant is not obtained or the scope of a valid warrant is exceeded; police must offer evidence that a crime has been committed and there is cause to believe the intended search will assist in investigation

Front 96

ch9: What two things does the fifth amendment give protection to?

Back 96

Protection against Self-Incrimination and Protection against Double Jeopardy

Front 97

ch9: What is self incrimination?

Back 97

Being compelled to testify against oneself; the fifth amendment protects against compulsory self-incrimination

Front 98

ch9: What is double jeopardy?

Back 98

Courts do not allow individuals to be tried twice by the governmental entity for the same crime based on the same factual situation. This does not prohibit two trials if an illegal activity violates both federal and state laws

Front 99

ch9: What rights in a criminal case does the sixth amendment give protection to?

Back 99

The right to:
- a speedy and public trial
- a trial by jury (doesn’t extend to a state juvenile proceeding)
- be informed of the charge against you
- confront your accuser
- subpoena (question) witnesses
- have the assistance of an attorney

Front 100

ch9: What are some specific crimes that are relvant to business?

Back 100

Fraud, Conspiracy, Obstruction of justice, RICO, Cyber Crime, Endangering workers, aiding and abetting

Front 101

ch9: What is fraud? Give an example.

Back 101

Can be a defense to a contract and can also be a civil tort action;
- anyone who knowingly and willfully falsifies, conceals, or covers up by an trick, scheme, or device a material fact ;
- makes any materially false, fictitious, or fraudulent statement or representation
- makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry

Front 102

ch9: What is mail and wire fraud?

Back 102

The use of the United States Postal Service or any interstate carrier to conduct fraudulent activities with the intent to deprive an owner of property

Front 103

ch9: What are some common fraud schemes?

Back 103

Common fraud schemes include:
- Telemarketing fraud: do not giver personal information to unknown callers
- Advance Fee Scheme: a victim receives nothing after paying in advance for something
- Impersonation/Identity Fraud: when someone assumes you identity to perform a fraud
- Ponzi Schemes: investment fraud

Front 104

ch9: What are some legal aspects of mail and wire fraud?

Back 104

A statement or representation is false or fraudulent if it is known to be untrue or is made with reckless indifference as to its truth or falsity; Intent to defraud means to act knowingly and with the specific intent to deceive someone; Good Faith is a complete defense because a person expresses an opinion or belief honestly which does not have fraudulent intent

Front 105

ch9: What are some examples of health care fraud?

Back 105

Examples include:
- billing for services not actually performed
- billing for a more costly procedure than the one actually performed
- accepting kickbacks for patient referrals

Front 106

ch9: What is bankruptcy fraud?

Back 106

It is a crime for the bankrupt debtor to falsify the information filed in the bankruptcy proceedings; it is a crime for anyone to present a false claim in any bankruptcy proceedings

Front 107

ch9: What is conspiracy?

Back 107

It is a separate criminal offense for anyone to conspire or agree with someone else to do something that, if carried out, would be a criminal offense; an agreement for criminal purposes in which each member becomes the agent or partner of every other member

Front 108

ch9: What are some different elements of conspiracy?

Back 108

Evidence must show beyond a reasonable doubt that:
- two or more persons came into a mutual understanding to try to accomplish a common and unlawful plan
- the defendant willfully became a member of such conspiracy
- during the existence of the conspiracy, one of the conspirators knowingly committed at least one of the overt acts described in the indictment
- such overt act was knowingly committed in an effort to carry out some object of the conspiracy

Front 109

ch9: What is an overt act?

Back 109

Any transaction or event knowingly committed by a conspirator in an effort to accomplish some object of the conspiracy

Front 110

ch9: What is obstruction of justice? Give some examples

Back 110

Occurs when an act is committed with the intent to obstruct the legislative process or a judicial process
- Ex: changing records of phone conversations, shredding documents when an investigation or litigation is pending, testifying falsely before Congress

Front 111

ch9: What are some elements of making a false statement to a bank?

Back 111

It is a federal crime for anyone willfully to make a false statement to a federally insured financial institution; a statement or report is false when made if it relates to a material fact and is untrue and is then known to be untrue by the person making it

Front 112

ch9: What is larceny? Give an example.

Back 112

The unlawful taking of personal property with the intent to deprive the rightful owner of it permanently; commonly referred to as theft or stealing
- Ex: shoplifting by customers is a common form of larceny

Front 113

ch9: What is the difference between robbery and burglary?

Back 113

Robbery: larceny by violence or threat such as with a gun
Burglary: breaking into a building with the intent to commit a felony

Front 114

ch9: What is the difference between embezzlement and money laundering?

Back 114

Embezzlement: occurs when a person entrusted with another’s money or property fraudulently take over it
Money Laundering: falsely reporting income that is obtained through criminal “dirty” activity as income obtained through a legitimate “clean” business enterprise

Front 115

ch9: What does RICO stand for?

Back 115

Racketeer Influenced And Corrupt Organizations Act

Front 116

ch9: What is racketeering? Give some examples.

Back 116

Any act or threat involving specified state law crimes, any act indictable under various specified federal statutes, and certain federal offenses
- Ex: counterfeiting, obstruction of justice, bribery

Front 117

ch9: What is a cyber crime?

Back 117

A person who intentionally accesses a computer without authorization or exceeds authorized access to obtain classified, restricted, or protected data, or attempts to do so

Front 118

ch9: What is endagerment of workers? Give an example.

Back 118

If a worker is injured, or even accidental homicide if a worker is killed on the job
- a company involved in a dangerous process, such as handling dangerous chemicals, or does not have adequate safety precautions, criminal liability may be imposed if workers are injured or killed

Front 119

ch9: What is aiding and abetting? What is it called at the state level?

Back 119

If a person acts under the direction of someone accused of criminal activities; the individual did not necessarily commit the same criminal acts a others; often charges of conspiracy and aiding and abetting are placed upon the person
- a person is an accessory to a crime at the state level

Front 120

ch1 (website): Civil law relies primarily on legislation, while common law relies on court decisions. True or False

Back 120

True

Front 121

ch1 (website): Public law encompasses those legal problems and relationships that exist between individuals. True or False

Back 121

False; between individuals and corporations or between individuals and the government

Front 122

ch1 (website): Legislation enacted by Congress is called a statute while a law passed by a local government is usually called an ordinance. True or False

Back 122

True

Front 123

ch1 (website): Each state creates its own body of common law. True or False

Back 123

True

Front 124

ch1 (website): The UCC would be used to resolve disputes in a contract with a cleaning service. True or False

Back 124

False

Front 125

ch1 (website): ________ means to follow the case precedent.
A) Stare decisis.
B) Constitutional realism.
C) Statutory construction.
D) Constitutional relativism.

Back 125

A) Stare decisis

Front 126

ch1 (website): Which of the following would be considered intangible:
A) Oxygen.
B) A house.
C) Gasoline.
D) Ownership of your books.

Back 126

D) Ownership of your books

Front 127

ch1 (website): All but which of the following is a disadvantage of stare decisis and the common law system:
A) Time involved.
B) Predictability.
C) Conflicting precedent.
D) Dicta.

Back 127

B) Predictability

Front 128

ch1 (website): All but which of the following is a disadvantage of stare decisis and the common law system:
A) Time involved.
B) Predictability.
C) Conflicting precedent.
D) Dicta.

Back 128

B) Predictability

Front 129

ch1 (website): When judges write their decisions on legal issues they set out their reasoning in _______.
A) Judgments.
B) Verdicts.
C) Opinions.
D) Citations.

Back 129

C) Opinions

Front 130

ch3 (website): Judicial restraint jurists do not view the role of attorneys and the practice of law as that of social reform.
A) True
B) False

Back 130

True

Front 131

ch3 (website): Issues of fact and law are determined in the trial court.
A) True
B) False

Back 131

True

Front 132

ch3 (website): The U.S. Constitution does not specify the size of juries required in civil and criminal trials.
A) True
B) False

Back 132

True

Front 133

ch3 (website): A lawyer's first duty is to the lawyer's client.
A) True
B) False

Back 133

False

Front 134

ch3 (website): Diversity of citizenship occurs when the controversy is valued at $75,000 or more or the litigants are citizens of different states.
A) True
B) False

Back 134

False

Front 135

ch3 (website): The size of a jury:
A) Historically was 12 jurors in civil and criminal cases.
B) Is always 12 jurors today.
C) Makes a discernable difference in the verdict.
D) Is usually 3 jurors in civil cases since 1990.

Back 135

A) Historically was 12 jurors in civil and criminal cases

Front 136

ch3 (website): Which of the following is not a role of an attorney:
A) Counselor.
B) Adjudicator.
C) Advocate.
D) Public servant.

Back 136

B) Adjudicator

Front 137

ch3 (website): Judicial review is:
A) The right of a court to review statutes and declare them unconstitutional.
B) The right of a legislature to pass statutes that overrule court decisions.
C) The right of an appellate court to overrule a lower court decision.
D) The right of the executive branch to enforce or not enforce judicial decisions.

Back 137

A) The right of a court to review statutes and declare them unconstitutional

Front 138

ch3 (website): Which of the following is not a typical judicial activist decision?
A) Statutes outlawing abortion are unconstitutional.
B) No school prayer.
C) Equal pay for comparative worth.
D) Male-only draft is acceptable.

Back 138

D) Male-only draft is acceptable

Front 139

ch3 (website): A Delaware corporation with its principal place of business in Illinois is a citizen of _____ for purposes of diversity.
A) Delaware only.
B) Illinois only.
C) Delaware and Illinois.
D) any state in the United States.

Back 139

C) Delaware and Illinois

Front 140

ch10: What is a patent?

Back 140

. A government grant that gives an inventor the exclusive right to or to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States

Front 141

ch10: Are ideas themselves patentable?

Back 141

No, only inventions that apply new ideas are patentable

Front 142

ch10: What is a trademark?

Back 142

word, name, symbol or device which is used in trade with goods to indicate the source of goods and to distinguish them from the goods of others

Front 143

ch10: What is a copyright?

Back 143

form of property protection provided by the U.S. government to the authors of "original works of authorship," including literarry, dramatic, musical, artistic and other intellectual works.

Front 144

ch10: How do you obtain a patent?

Back 144

1.Inventor must pay a filing fee and file an application with the PTO (Patent and Trademark Office)
2. Application must explain how to make and use the basic invention
3. Show why the invention from prioir art (previous related inventions)
4. Precisely describe what aspects of the invention (called claims) deserve the patent

Front 145

ch10: Who decides the final validity of a patent?

Back 145

Only a court can dtermine patent validity

Front 146

ch10: What are the different areas of subject matter that can be patentable?

Back 146

a. Process
b. Machines
c. Composition of Matter
d. Improvements to the foregoing
e. Nonfunctional designs of a manufactured article
f. Certain plants

Front 147

ch10: That basis for subject matter jursidiction in J.E.M case is?

Back 147

Whether utlility patents may be isued for plants pursuant

Front 148

ch10: According to the J.E.M case, what did the courts use to establish that the subject matter of patents is very broad?

Back 148

They used statutory construction and precedent

Front 149

ch10: What are the other three areas of requirement for a patent?

Back 149

1. Nonobviousness
2. Novelty
3. Usefulness

Front 150

ch10: What does the nonobvious requirement for a patent refer to?

Back 150

that a patentable invention must not have been obvious to a "person having ordinary skill in the art" in view of the appropriate prior art

Front 151

ch10: What does the novelty requirement for a patent refer to?

Back 151

not the same as prior products or process - must be new

Front 152

ch10: What does usefulness refer to for a patent?

Back 152

subject matter has a useful purpose (does not apply to design or plant patents)

Front 153

ch10: What was the main issue in the Smucker’s Uncrustables video?

Back 153

Smuckers wanted to get a patent for thier unique way of keeping the jelly secure by surrounding it with peanut butter. They already had a patent for the way the folded the sandwhich after cutting off the crust

Front 154

ch10: What is the patent duration for a utility patent? A plant patent? A design patent?

Back 154

1. Utility Patent: 20 years from time of filing application

2. Plant Patent: 20 years from time of filing application

3. Design Patent: 14 years from time of filing application

Front 155

ch10: What are some current issues concerning patent law?

Back 155

1.Business Method Patents: Many Internet businesses patented business methods and sued imitators for using the same method

2.Pharmaceutical Patents: Patents on medicines to cure human disease are some of the most controversial of property applications

3. Patenting Genes: Only when the gene has been isolated and purified in a way that can be put to use can someone patent it

Front 156

ch10: What is the definition of a trademark?

Back 156

The term trademark includes any work, name, symbol, or device, or any combination thereof –
1) used by a person, or
2) which a person has a bona fide intention to use in commerce
and applies to register on the principal register established by this Sct, to identify and distinguish his or her good, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

Front 157

ch10: What are the different types of trademarks?

Back 157

a. Trademark: any mark, word, picture, or design that attaches to goods to indicate thier source

b. Service Mark: a mark associated with a service (Ex: Monster.com)

c. Certification mark: a mark used by someone other than the owner to certify the quality (ex: the Good Housekeeping Seal of Approval)

d. Collective Mark: a mark representing membership in a certian organization or association (ex: NFL logo)

e. Trade dress: refers to a colored design or shape associated with a product or service (ex: Coca-cola bottle)

Front 158

ch10: For a trade mark to be registered, is must be_______. Under what circumstances will the PTO deny registration?

Back 158

Distinctive;
1. If mark is the same or similar to a mark currently used on similar related goods

2. If mark contains certian prohibited or reserved names (US flag)

3. If mark describes a product or service (ex: "Fast Food" for a restaurant franchise)

4. If mark is generic and represents a product of service (ex: "Telephone" for a communication company

Front 159

ch10: What is a generic mark? Can it be registered?

Back 159

A generic mark represents a product service in a descriptive way; A mark that is generic cannot be registered

Front 160

ch10: What is the term for civil violation of a trademark?

Back 160

Infringement

Front 161

ch10: When does a trademark most likely become generic?

Back 161

1. When an owner does not defend against unauthorized use
2. When the punlic becomes confused as to whether a term refers to a particular product/service or refers to a general class of products/services

Front 162

ch10: What defenses will a defendant usually present to win a trademark infringement lawsuit?

Back 162

1. The mark is not distinctive

2. There is little chance of the public's being confused by use of a term trademarked by someone else

3. the use is a "fair use"

Front 163

ch10: What is trademark dilution?

Back 163

Using someone's trademark in such a way so as to reduce the value of the trademark's significance, reputation, and goodwill even if the public is confused by the use; Mark Must Be Famous!

Front 164

ch10: What are the facts of the Mosely V. Secret Catalogue case?

Back 164

i. Victor and Cathy Mosely owned Victor's Secret selling intimate lingerie
ii. VS owns VS trademark demanded that Victor's Secret change their name
iv. Victor's Secret changes name to Victor's Little Secret
v. Victoria's Secret sues Mosely for infringement and dilution

Front 165

ch10: What is the procedural history of the Mosely V. Secret Catalogue case?

Back 165

i. Trial Court: no infringement. dilution of VS trademark occurred

ii. Court of Appeals: affirmed

iii. Supreme Court Granted Cert and reversed

Front 166

ch10: What was the reasoning behind the Supreme Court’s opinion in the Mosely V. Secret Catalogue case?

Back 166

based on statutory construction "causes dilution" requires proof of actual dilution not likelihood of dilution

Front 167

ch10: Who does the copyright law mainly protect?

Back 167

Protects authors rather than inventors

Front 168

ch10: What are the different categories that can have a copyright?

Back 168

a. literary works
b. musical works
c. dramatic works
d. pantomimes and choreographed works
e. pictorial, graphic and sculptural works
f. motion picture and other audio visual works
g. sound recordings
h. architectural works

Front 169

Ch10: What are the different catergoies that CANNOT have a copyright?

Back 169

titles, names, short phrases, slogans, familiar symbols, ideas, procedures, methods, systems, processes, concepts, works consisting of informatin that is common property and containing no original authorship

Front 170

ch10: How is copyright protection obtained?

Back 170

a. no publication or registartion or other action with copyright office is required to secure copyright
b. Copyright secured when work is created and fixed in a copy for the first time

Front 171

ch10: How do you register for a copyright?

Back 171

file the following with the copyright office
a. Completed application form
b. non-refundable filing fee
c. nonreturnable deposit of the copy or copies of the work being registered

Front 172

ch10: What criteria must be met for copyright protection?

Back 172

1. A work must be original; must be created, not copied

2. The work must be fixed in a tangible medium of expression like a book, canvas, or tape

3. The work must show some creativity

Front 173

ch10: What is the duration of copyright?

Back 173

a. automatic federal protection from the moment work is created
b. works created after 1977 - authors lifetime plus 70 years

Front 174

ch10: What are the facts of the Campbell V. Acuff-Rose Music case?

Back 174

i. 2 Live Crew rap group recorded and sold parody of Roy Orbison's copyrighted song "Oh Pretty Woman"
ii. 2 Live Crew sold over a quarter million copies
iii. Acuff Rose Music Inc. copyright holder sued 2 Live Crew

Front 175

ch10: What is the procedural history of the Campbell V. Acuff-Rose Music case?

Back 175

i. Trial Court: Fair Use in favor of Campbell
ii. Court of Appeals: reversed in favor of Acuff
iii. Supreme Court. granted cert. reversed and remanded

Front 176

ch10: What is a trade secret?

Back 176

information, including a formula, pattern, compilation, method, technique or process that:
1) derives independent economic value, from not being generally known to, and not being readily ascertainable by other persons who can obtain economic value from its disclosure or use;
2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Front 177

ch10: What are the different requirements of a trade secret?

Back 177

Businesses can claim trade secret only if the knowledge protected has economic value. The value must come specificially from the knowledge not being available to the public

Front 178

ch10: What is an injunction?

Back 178

an order by a judge either to do something or to refrain from doing something. For trade secrets, this orders those who have misappropriated the trade secret to refrain from using it or telling others about it

Front 179

ch4 (website):The party appealing is usually referred to as the appellee.
A) True
B) False

Back 179

False; the party appealing is called the appellant

Front 180

ch4: (website): A court will automatically acquire personal jurisdiction over a party once standing to sue is established.
A) True
B) False

Back 180

False; the complaint formally starts the lawsuit

Front 181

ch4: (website): A statute of limitations determines the maximum amount of money that a plaintiff may sue for.
A) True
B) False

Back 181

False; each state has a time limit after which a suit cannot be filed

Front 182

ch4 (website): The verdict is the final decision of the case entered by the judge.
A) True
B) False

Back 182

False; the judgement is the final decision

Front 183

ch4 (website): Concerning federal class-action lawsuits:
A) The Supreme Court encourages these suits.
B) Notice must be given to class representatives only.
C) Plaintiffs must pay their attorneys' fees prior to the filing of the suit
D) Actual notice is required to all members of the class that can be located

Back 183

D) Actual notice is required to all members of the class that can be located

Front 184

ch4 (website): In federal courts and in many states, appellate courts are not allowed to disturb factual findings unless:
A) The court does not know the trial judge.
B) The appellant has requested a new trial.
C) The factual findings are clearly erroneous.
D) The court wants to substitute its own interpretation of the evidence.

Back 184

C) The factual findings are clearly erroneous

Front 185

ch4 (website): Why can't your friend sue someone for you if you refuse to do so?
A) He has no standing to sue.
B) He does not have a writ of execution.
C) He has no personal jurisdiction.
D) He has no summons.

Back 185

A) He has no standing to sue

Front 186

ch4 (website): In criminal cases, jurisdiction is determined by:
A) Where the crime occurs.
B) Where the defendant lives.
C) Where the victim lives.
D) Where the crime is reported.

Back 186

A) Where the crime occured

Front 187

ch4 (website): In a recent survey of 1000 judges, the following was rated the highest among reasons for the high cost of litigation:
A) Filing costs.
B) Abusive discovery.
C) Attorney fees.
D) Costs associated with the enforcement of a judgment.

Back 187

B) Abusive discovery

Front 188

ch7 (website): To be enforceable, a contract must contain a written promise.
A) True
B) False

Back 188

False; contract law enables private agreements to be legally enforceable

Front 189

ch7: (website): Your professor has offered to sell a car to you for $1,000.00 and you have agreed. You've both signed a contract fully detailing the transaction which will be executed in 24 hours and you've shaken hands. The two of you have a firm offer for the purchase of the car.
A) True
B) False

Back 189

False; there must be an option which is an agreement not to revoke an offer before the transaction

Front 190

ch7 (website): A teacher's promise to pay $5.00 if a student goes to her office to get her some chalk is an example of a unilateral contract.
A) True
B) False

Back 190

True

Front 191

ch7 (website): A victim of a contract breach should mitigate her damages, but she does not have to do so.
A) True
B) False

Back 191

False; Mitigation is the responsibility of the victim of breach of contract

Front 192

ch7 (website): Complete performance discharges a party to a contract.
A) True
B) False

Back 192

True

Front 193

ch7 (website): Owner and builder agree that it will be difficult to determine damages if construction is not completed in time for the grand opening. In the contract they specify that the damages will be $1,000 per day, which is reasonable considering the amount of the contract. This type of damages is called:
A) Compensatory.
B) Consequential.
C) Nominal.
D) Liquidated.

Back 193

D) Liquidated

Front 194

ch7 (website): Which of the following does not make a contract voidable:
A) Fraud.
B) Duress.
C) Adjudicated incompetence.
D) Misrepresentation.

Back 194

C) Adjudicated incompetence

Front 195

ch7 (website): Which type of damages is usually not available in contracts?
A) Punitive.
B) Compensatory.
C) Consequential.
D) Liquidated.

Back 195

A) Punitive

Front 196

ch 7 (website): That parties to a written contract may not introduce oral evidence to change written terms is an application of:
A) The Statute of Frauds.
B) Concurrent conditions.
C) The Parole Evidence Rule.
D) Conditions subsequent.

Back 196

C) The Parole Evidence Rule

Front 197

ch7 (website): Which of the following does not require intent?
A) Fraud.
B) Duress.
C) Undue influence.
D) Misrepresentation.

Back 197

D) Misrepresentation

Front 198

ch8 (website): A defendant can be found liable for a strict liability tort even though the defendant was shown to be neither intentionally nor negligently the cause of the harm.
A) True
B) False

Back 198

True

Front 199

ch8 (website): Publication, with regard to defamation, requires that the lie be printed and distributed to the public.
A) True
B) False

Back 199

False; the defamation just needs to be made known to third parties

Front 200

ch8 (website): While individuals and corporations may sue for defamation, only individuals may collect punitive damages.
A) True
B) False

Back 200

Flase; individuals and corporations can collect punitive damages

Front 201

ch8 (website): You are guilty of the tort of conversion if you purchase stolen goods, even if you didn't know that they are stolen.

Back 201

True

Front 202

ch8 (website): For negligence, the plaintiff must prove the defendant was the actual and proximate cause of the harm.
A) True
B) False

Back 202

True

Front 203

ch8 (website): Which of the following will not absolve a common carrier of liability for goods being transported by them?
A) The truck is pulled over by the police who damage the goods while exercising a search warrant.
B) The truck hits a bump and the goods are damaged because of inadequate padding used by the shipper.
C) The goods are being transported in an open back truck and are damaged due to a seasonal rain.
D) All of the above free a common carrier from liability.

Back 203

C) The goods are being transported in an open back truck and are damaged due to rain

Front 204

ch8 (website): A tort is:
A) A civil, non-contractual wrong.
B) Any civil wrong.
C) Only civil wrongs involving goods.
D) A criminal wrong.

Back 204

A) A civil, non-contractual wrong

Front 205

ch8 (website): Strict product liability does not apply to:
A) Retailers.
B) Wholesalers.
C) Manufacturers.
D) Consumer sales.

Back 205

D) Consumer sales

Front 206

ch8 (website): The exclusive remedy rule:
A) Makes worker's compensation an employees' sole remedy against employers for workplace injuries.
B) Defines foreseeability with regard to proximate cause.
C) Defines the employer's liability with regard to respondeat superior.
D) Is one of the initiatives with regard to limitations controlling punitive damage awards.

Back 206

A) Makes worker's compensation an employees' sole remedy against employers for workplace injuries.

Front 207

ch8 (website): Josh worked in the shipyards putting asbestos inside the ships. He learned that he is now dying from exposure to the asbestos that happened 30 years ago. The asbestos manufacturer should use which of the following as its best defense?
A) Assumption of the risk.
B) Statute of repose.
C) Contributory negligence.
D) Fellow servant rule.

Back 207

B) Statute of repose

Front 208

Ch1: What factor contributes most to whether a nation is economically weak or strong?

Back 208

A certian type of law and legal system which is recognized as a nexessary foundation for strong, productive economies

Front 209

ch1: What are four aspects of law?

Back 209

A) Tells people what they can and cannot do
B) Made up of rules
C) These rules are laid down by the state and backed up by enforcement
D) Law comes from the state

Front 210

ch1: What is rule of law?

Back 210

laws that are made are generally and equally applicable and they apply to all members of society, including the lawmakers

Front 211

ch1: What is property?

Back 211

The legal right to exclude or keep others from interfering with what you own

Front 212

ch1: What are three ways of applying the exclusionary right of property?

Back 212

A) Public property: can be public resources like roads, monuments, public lands
B) Private Property: resources you own
C) Common Property: applies to resources like land that more than one individual owns jointly

Front 213

ch1: What is common law?

Back 213

Judge Made Law! one of two major legal systems which emphasizes the role of judges in determining the meaning of laws and how thy apply

Front 214

ch1: What is public law?

Back 214

includes those matters that involve the regulation of society as opposed to individuals interactiong

Front 215

ch1: What are the main types of public law?

Back 215

A) Constitutional Law: involves the interpretation and application of federal/state constitutions

B) Administrative Law: covers the legal principles that apply to goverbment agencies, bureaus, boards, or commissions

C) Criminal Law: specifies various offenses against the proper order of the state

Front 216

ch1: What is private law?

Back 216

refers to those legal problems and issues that concern your private resource relationships with other people

Front 217

ch1: What are the main types of private law?

Back 217

A) Property Law: involves recognition of exclusive right in both tangible and intangible resources. Areas of property law concern land, goods, copyrights, patents

B) Contract Law: covers the rules of how owners transfer resources by exchanging them. Often involve enforceable promises to exchange resources in the future

C) Tort Law: establishes rules for compensation when an owner's legal boundaries are wrongfully crossed by another. Often requires actual injury to the owners resources

Front 218

ch1: What is civil law?

Back 218

cases that may include suits for breach of contract or tort cases, such as suit for personal injuries

Front 219

ch1: What is criminal law?

Back 219

cases involving a representative of government attempting to prove the wrong committed against society and seeking to have the wrongdoer punished

Front 220

ch1: What is substantive law?

Back 220

defines the legal relationships of people with other people or b/t them and the state. Contract laws are substantive laws; provides machinery for enforcing rights and duties

Front 221

ch1: What is procedural law?

Back 221

defines the rights and duties
ex: time allowed for one party to sue another
ex: rules of law governing the process of the lawsuit

Front 222

ch1: What are the different sources of law?

Back 222

A) Constitutions
B) Legislation
C) Administrative Regulation
D) Judicial Decisions of case law

Front 223

ch1: What are the highest laws of the nation?

Back 223

the constitutions of the states and federal government

Front 224

ch1: What is legislation?

Back 224

formal written laws; the most significant source of law

Front 225

ch1: Legislation adopted by Congress or at a state legislature are known as?

Back 225

statutes or acts

Front 226

ch1: Laws passed by local governments are called?

Back 226

Ordinances

Front 227

ch1: What are codes?

Back 227

compilations of legislation at all levels of government

Front 228

ch1: What is the UCC?

Back 228

Uniform Commercial Code; covers the law relating to the sales of goods

Front 229

ch1: What are precedents?

Back 229

opinions on legal issues which are written down and can be used in futire cases involving similar facts and legal issues

Front 230

ch1: What is stare decisis?

Back 230

The doctrine of prior precedants; "Let the prior decision stand!"

Front 231

ch2: What is morality?

Back 231

the collection of values that guides our behavior; values about right and wrong

Front 232

ch2: What are the two systems of ethics?

Back 232

Formalism: a particular act in itself is always right or wrong; moral obligation view of ethics

Consequentialism: moral consequences of actions
Ex: lying itself is not unethical, the loss of trust or harm done by lying is what results

Front 233

Ch2: What are examples of academic dishonesty?

Back 233

Plagiarism, unauthorized assistance, lying/tampering, theft

Front 234

Ch3: What is the different personnel of the court system?

Back 234

Judges/Justices
Jurors
Lawyers

Front 235

ch3: What is the difference between a a trial judge and a justice?

Back 235

Trial Judge: determines appropriate rules of law to be used to decide case; concerned with issues of fact; in cases without a jury, trial judges find the facts

Justices: reviewing court persons; give decisions for appeals with reasoning; these decisions become precedent; concerned with issues of law

Front 236

ch3: What is the main role of a jury?

Back 236

a jury is a fact-finding body

Front 237

ch3: What is a petit jury?

Back 237

the trial jury that returns a verdict in both criminal and civil cases

Front 238

ch3: What are lawyer's role in the court system?

Back 238

Prsent eveidence, points of law, and the arguments. First duty is to the administration of justice

Front 239

ch3: What three capacities do lawyers serve as?

Back 239

A)Counselor
B) Advocate
C) Public Servant

Front 240

ch3: How is the federal court system structured?

Back 240

Trial Courts (level one)-->Courts of Appeals-->Supreme courts (level 3)

Front 241

ch3: What is subject matter jurisdiction?

Back 241

the power OVER THE ISSUES involved in a case which the court has

Front 242

ch3: What is the difference between general and limited jurisdiction?

Back 242

General Jurisdiction: the power to hear ANY type of case

Limited Jurisdiction: the power to hear only certian types of cases

Front 243

ch3: What are some examples of courts with limited jurisdiction?

Back 243

Probate courts, Juvenile courts, traffic courts

Front 244

ch3: What three sources are state court systems created and governed from?

Back 244

A)State Constitutions
B)State Legislature
C)Rules set forth by each court

Front 245

ch3: What is the function of the trial court?

Back 245

this is where parties file thier lawsuits or complaints; responsible for determining the facts AND the law in the case

Front 246

ch3: What is the function of the appellate court?

Back 246

a higher court where appeals by parties to litigation are reviewed

Front 247

ch3: What is a writ of certiorari?

Back 247

the procedure for requesting a second review to the Supreme Court

Front 248

ch3: What do federal courts have subject matter jurisdiction over?

Back 248

Federal Question cases and Diversity of Citizenship cases

Front 249

ch3: What are federal question cases?

Back 249

based on issue of law arising out of the Constitution or federal statutes with any amount of money involved

Front 250

ch3: What is diversity of citizenship?

Back 250

requires that all plaintiffs be citizens of different states from all defendants AND the case must involve more than $75,000 in controversy

Front 251

ch3: What are the trial courts of the federal judicial system?

Back 251

the federal district courts

Front 252

ch3: How many US courts of appeal are there?

Back 252

12 US courts of appeal plus a special courts of appeal for federal circuit

Front 253

ch3: How is a review (appeal) by the US Supreme Court obtained?

Back 253

through a writ of certiorari, which is a request by the losing party in the court of appeals for permission to file an appeal with the US supreme court

Front 254

ch3: How many US Supreme Court justices must vote yes to grant a petition fo writ of cert?

Back 254

four

Front 255

ch3: What circuit is the Supreme Court most likely to review and reverse a decision?

Back 255

9th circuit

Front 256

ch3: What circuit is Georgia in?

Back 256

11th circuit

Front 257

ch3: What is judicial review?

Back 257

most significant power of the courts to review laws passed by the legislative body and declare them unconstitutional and void

Front 258

ch3: What are aspects of judicial restraint?

Back 258

A)Believe that judical review should not be used except in unusual cases
B)believe the proper use of judicial power demands that courts refrain from determining the constitutionality of an at
C)litigation is not the proper technique for bringing about social, political, and economic change
D) known as strict constructionism; Constitution should be interpreted in light of waht founding fathers intended
E) deep commitment to precedent; look at the facts

Front 259

ch3: What are aspects of judicial activism?

Back 259

A) courts must provide leadership in bringing about social, political,and economic change
B)believe courts have a major role to play in correcting wrongs in our society
C)believe meaning of Constitution is relative to the times today
D)place less reliance on precedent

Front 260

ch3: Who were the plaintiff's in the Kylo case?

Back 260

Kylo and other land owners whose land was subject to condemnation by New London Development Corporation

Front 261

ch3: Who was the defendant in the Kylo case?

Back 261

New London Development Corporation

Front 262

ch3: What were the facts of the Kylo case?

Back 262

A)This was an economic development plan of the city
B)City used eminent domain power to take several parcels of land
C)land wa to be owned by a private developer who was to build a pharmacy, resort hotel, state park

Front 263

ch3: What happened after a permanent restraining order was issued by the superior court in the Kylo case?

Back 263

1)Parties appealed to the supreme court of Connecticut, who decided to allow the city to take all the condemned land
2)Kylo granted for a writ of certoirari because it involved an important federal question
3)Decision was affirmed (agreed with lower court)

Front 264

ch3: Which amendment is the relevant Constitutional provision in the Kylo case?

Back 264

Amendment V

Front 265

ch3: What was the reasoning in the Kylo case?

Back 265

1)The 5th Amendment permits govt to take private property for pulic use upon payment of just compensation
2)Govt formulated plan to provide jobs and taxation which amounts to a public purpose

Front 266

ch3: How is diversity of citizenship decided with corporations?

Back 266

A corporation is a citizen of the state of incorporation AND also a citizen of the state in which it has principal place of business

Front 267

ch3: What were the reasons for Congress providing diversity of citizenship?

Back 267

to gaurd against state court bias against the nonresident party in a lawsuit and preserves the sense of fairness in such situations when one of the parties is out of state

Front 268

ch4: Who is the defendant? Who is the plaintiff?

Back 268

The defendant is the party being sued

The plaintiff is the party who files a civil action

Front 269

ch4: What is a counterclaim?

Back 269

Filed by the defendant when they want to sue the plaintiff

Front 270

ch4: Who is the counterdefendant? Who is the counterplaintiff?

Back 270

the plaintiff becomes the counterdefendant in a counterclaim

the defendant becomes the counterplaintiff in a counterclaim

Front 271

ch4: What are third-party defendants

Back 271

when a defendant alleges that there cannot be a complete determination of a controversy without the presence of other parties who may have liability to the defendant if the defendant has liability to the plaintiff

Front 272

ch4: What is standing to sue?

Back 272

A plaintiff must establish that he or she is entitled to have the court decide the dispute

Front 273

ch4: What two things must the plaintiff allege to establish a required standing?

Back 273

1)That the litigation involves a case or controversy
2)must allege a personal stake in the resolution of the controversy

Front 274

ch4: What is personal jurisdiction?

Back 274

a court must have authority over the PARTIES to the case. Obtained over the plaintiff when the plaintiff files a suit

Front 275

ch4: How is personal jurisdiction over the defendant obtained?

Back 275

usually obtained by the service of a summons, which is a notice to appear in court

Front 276

ch4: What are long-arm statutes?

Back 276

provide for the service of process beyond a states boundaries only if they provide a defendant with due process of law

Front 277

ch4: What three things can a defendant do to have a long-arm statute, even though the process is served beyond its borders?

Back 277

1) If the defendant has committed a tort within the states
2) If the defendant owns property within the state that is the subject matter of the lawsuit
3) If the defendat has entered into a contract within the state or has transacted the business that is the subject matter of the lawsuit within the state

Front 278

ch4: What are the pretrial procedures?

Back 278

Plaintiff files complaint-->complaint and summons served on defendant-->defendant files motion or answer with possible counterclaim-->court rules on motion-->Plaintiff files reply to answer-->attorneys conduct discovery procedures-->parties may file motions for summary judgment or judgment on the pleading-->court conducts pretrial conference

Front 279

ch4: What are pleadings?

Back 279

The legal documents that are filed with a court to begin the litigation process

Front 280

ch4: What is a complaint?

Back 280

the first written statement of the plaintiff's position and allegations which initiates the lawsuit

Front 281

ch4: What is an answer? In what three ways could a defendant answer?

Back 281

a response to a complaint filed by the defendant. Te answer will either admit, deny or provide a counterclaim for the allegations

Front 282

ch4: What is the discovery process?

Back 282

procedures which take place before the actual trial and allow the parties to obtain information relevant to the case; encourages the settlement of the lawsuit, thereby avoiding the actual trial

Front 283

ch4: What are the different methods of discovery?

Back 283

1)Interrogatories: least expensive method of discovery; present a series of questions to opposing parties

2)Request for production of documents: either party might ask the other to produce specific documents that are important to the lawsuit's outcome

3)Depositions: most expensive and revealing; lawyer orally aks questions to the possible witness and an oral response is given

Front 284

ch4: What is a motion?

Back 284

the parties make written or oral requests that the judge issue an order or ruling

Front 285

ch4: What are the three primary motions?

Back 285

1)Motion to dismiss-request of court to dismiss case

2)Motion for judgment on pleadings- either party can ask the judge to decide the case based on the compliment or answer

3)Motion for summary judgment- asking the judge to base a decision on the pleadings and on other evidence

Front 286

ch4: What are the stpes in a trial?

Back 286

Voir dire (jury selection)-->opening statements-->plaintiff presents evidence through witness-->defendant move for directed verdict-->defendant presents evidence through witnesses-->closing arguments-->jury instructions-->verdict-->judge enters judgment on verdict-->post trial motion

Front 287

ch4: What is voir dire?

Back 287

means to "speak the truth"; an examination allows the court to examine each potential juror as to his or her qualifications and ability to be fair and impartial

Front 288

ch4: What are peremptory challenges?

Back 288

both parties are given a certian number of challenges for which no cause or reason need be given to excuse a prosepective juror

Front 289

ch4: What is the purpose of an opening statement?

Back 289

familiariizes the jury with the essential facts that each side expects to prove

Front 290

ch4: What is a directed verdict?

Back 290

the judge will view in the light most favorable to the nonmoving party; removes the jury's discretion

Front 291

ch4:What are jury instructions?

Back 291

following the closing arguments, the judge acquaints the jury with the law applicable to the case; purpose is to bring the facts and the law together

Front 292

ch4: What two things does burden of proof mean?

Back 292

1) describes the burden of responsibility that a person has to come forward with evidence on a certian issue

2)also describes the responsibility a person has to be persuasive as to a specific fact

Front 293

ch4: How is the burden of proff described for criminal cases?

Back 293

beyond a reasonable doubt; jury has no reasonable doubt about the defendant's guilt; not used in civil cases

Front 294

ch4: In civil cases, the party with the burden of proof is subject to one of what two standards?

Back 294

1)Preponderance of evidence: used most frequently; achieved when there is greater weight of evidence in support of the proposition than there is against it

2) Clear and convincing proof: law requires more than a simple preponderance of evidence but less than proof beyond a reasonable doubt

Front 295

ch4: What is the verdict?

Back 295

the jury's decision after determining the facts and applying the law

Front 296

ch4: What is judgment notwithstanding the verdict?

Back 296

state court-the judge may enter a judgment opposite that of the jury's verdict if the judge finds that the verdict is erroneous

Front 297

ch4: Who is the appelant? Who is the appelle?

Back 297

Appelant=party appealing

Appellee=the successful party in the trial court

Front 298

ch4: what is execution?

Back 298

primary enforcement mechanism; a court offical seizes some property of the debtor, sells it at a public auction, and ives the proceeds to the creditor

Front 299

ch4: What is another form of execution?

Back 299

Garnishment: involves having a portion of the debtor's wages paid to the court

Front 300

ch4: What is res judicata?

Back 300

a final decision is conclusive on all issues between the parties; brings disputes to a conclusion

Front 301

ch11: Who is the principal of an agency?

Back 301

authorizes the Agent to work under his control and on his behalf

Front 302

ch11: Who is the agent of an agency?

Back 302

authorized to act on behalf of the principal with a third party

Front 303

ch11: What is the conncetion of a third party to an agency?

Back 303

negotiates or acts with agent to be bound by the principal

Front 304

ch11:What duties owed to the principal must an agent comply to?

Back 304

a. Loyalty. Duty of loyalty to act fo the principal's benefit, includes duty of confidentiality
b. Notification. Duty to keep the principal fully informed
c. Obedience. A duty to obey instructions
d. Accounting. A duty to account to the principal for monies handled
e. Avoid conflicts. Not accept any conflicting obligations inconsistent with duties owed to principal without disclosure and consent

Front 305

ch11: What are the principal's duties for an agency?

Back 305

a. Compensation. Duty to pay the agent for services rendered (this could be an implied-in-fact contract
b. Reimbursement and indemnificiation. Duty to reimburse for payments made by the agent and obligations incurred by the agent
c. Cooperation. Duty to cooperate and assist the agent in performing duties
d. Safe working conditions. Duty to provide safe working premises, equipment and conditions

Front 306

ch11: Whats is respondeat superior?

Back 306

the doctrine imposing liability on one for torts committed by another person who is in his or her employ an subject to his or her control

Front 307

ch11: What are the different forms of contractual liability, making the principal and the third party contractually bound?

Back 307

a. Actual authority: authority given in clear, direct and definite terms, orally or in writing. Specific instructions, whether spoken or written, given by an employer to an employee create actual authority

b. Implied authority: to do what is reasonably necessary to carry out express authority and accomplish the objectives of the agency. Authority customarily associated with the position occupied by the agent.
eg. given authority to manage business. customarily includes authority to hire, fire, buy merchandise and equipment, advertise products etc.

c. apparent authority. principal's words or conduct would lead a reasonable person in the third party's position to believe the agent was authorized to act.

Front 308

ch11: What are the facts of the Arthur Anderson v. US case? Procedural history? Reasoning?

Back 308

Facts:
-AA served as auditor for Enron. Fall 2001 Enron accounting scandal. October 2001 AA emphasized to employees that its document retention policy should be followed and specific instruction to the Enron Crisis Response Team at AA
-Team members started shredding Enron documents. October 30, SEC opened formal investigations, asking Enron for accounting documents. Shredding continued
-AA indicted for obstruction of justice

Procedural history:
-Trial Court: convicted after 10 days of deliberation
-Court of Appeals: affirmed
-Supreme court. granted cert., reversed and remanded

Reasoning:
-meaning of "knowingly corruptly" knowingly. awareness, understanding, consciousness corruptly. wrongful, immoral, depraved, evil
-Jury instruction failed to include culpability required by "knowingly corruptly"
-Important fact. AA had valid document retention policy in plac

Front 309

ch11: What are the different types of business forms?

Back 309

1.Sole Proprietor
2.Corporation
3.Partnership
4.Limited Partnership
5.Limited Liability Company

Front 310

ch11: What factors should be considered when selecting an organizational form?

Back 310

1. The cost of creating the organization
2.The continuity or stability of the organization
3.The control of decisions
4.The personal liability of the owners
5.The taxation of the organization's earnings and its distribution of profits to the owners

Front 311

ch11: Which are the three traditional business forms?

Back 311

Sole Proprietorship
Corporation
Partnership

Front 312

ch11: What is a sole proprietorship?

Back 312

A)The easiest and least expensive business organization to create...the proprietor obtains whatever business licenses are necessary and begins opreations

B)created and controled by the owner

C)Owner has unlimited liability...personally obligated for the debt of the proprietorship

D)Not taxed as an organization

Front 313

ch11: What is a partnership? How is it created? What is the managerial control? What is the liability? What is the taxation?

Back 313

An agreement between two or more individuals to share a common interest in a commercial endeavor and to share profits and losses

Creation:
-the cost of forming in relatively minimal
-Satisfy the following:
-two or more persons
-a common interest in business
-sharing profits and losses

Managerial control:
-each partner has an equal voice in the firm's affairs

Liability:
-all partners in a general partnership have unlimited liability for thier organization's debt
-Jointly and serverally liable: makes two or more people, usually partners, liable for entire debt as individuals OR in any propartional combination

Taxation:
- partnerships are not a taxable entity (pays no income tax)

Front 314

ch11: What is a corporation? How is it created? What is the managerial control? What is the liability? What is the taxation?

Back 314

An artificial, intangible entity created under the authority of a state's law. Known as a domestic corporation in the state in which it is incorporated. Known as a foreign corporation for all other states

Creation:
-created by a state issuing a charter upon the application of individuals known as incorporators
-more costly to form than partnerships: filing fees, franchise taxes, cost of supplies
-there also are annual costs in continuing operation

Managerial control:
-complicated by three groups:
-Shareholders:elect the members of the board of directors
-directors:set the objectives or goals and appoint the officers
-officers:president, vice president etc. are charged with managing the daily operations in an attempt to achieve the stated goals

Liability:
-corporate shareholders are said to have limited personal liability-->business owners pay the debts of thier businesses when such exposure does not exceed the owner's investment in the business

Taxation:

Front 315

ch11: What is a limited partnership? How is it created? What is the managerial control? What is the liability?

Back 315

Basically has all the attributes of a partnership except that one or more of the partners are designated as limited partners which means they are not personally responsible for the debts of the business

Creation:
-created by an agreement but states law requires that the contents of a certificate musr be recorded in a public office so that everyone may be fully advised to the details of the business

Managerial control:
-General partners are in control
-Limited partners have no right to participate in management

Liability:
-General partners have unlimited liability
-Limited partners are not personally liable for the partnership's debts

Front 316

ch11: What is a limited liability company? How is it created? What is the managerial control? What is the liability? What is the taxation?

Back 316

has characteristics of both a partnership and a corporation

Creation: created through filings much like those used when creating a corporation-->Articles of organization are filed with a state official

Managerial control:
-vested in its members (owners)

Liability:
-the owners personal liability is limited to thier capital contributions

Taxation:
- As an organization, an LLC is not a taxable entity

Front 317

ch10 (website): Zoning laws apply to types and locations of physical structures but not to aesthetic characteristics such as color and exterior design.
A) True
B) False

Back 317

False; zoning laws do apply to aesthetic characteristics

Front 318

ch10 (website): The courts can declare a trademark invalid even if the U.S. Patent and Trademark Office has accepted registration.
A) True
B) False

Back 318

True

Front 319

ch10 (website): Through the government's power of eminent domain, it can take private property for "public use", upon the payment of "just compensation."
A) True
B) False

Back 319

True

Front 320

ch10 (website): Congratulations! Your school has just been accredited by the United Federation of Planets Academy of Business and Managements Schools. Your school is provided with an icon to put on its home page saying "Member of UFPABMS". This icon is a:
A) Promotion mark.
B) Collective mark.
C) Trademark.
D) Brand mark.

Back 320

B) Collective mark-->represents membership in a certian organization

Front 321

ch10 (website): Jon manufactures cheap jeans and sews a fake "Levi" label on them intending to fool the customer into thinking they are real Levi jeans. What crime has he committed?
A) Palming off counterfeits.
B) Copyright infringement.
C) Fair use violation.
D) Private nuisance.

Back 321

A) Palming off counterfeits-->deliberate intent to pass off fake products as real by attaching an unauthorized trademark

Front 322

ch10 (website): Under patent law, an invention otherwise new fails the novelty test if the inventor has put the invention to public use more than ________ before the patent application is filed.
A) Three months.
B) Six months.
C) Twelve months.
D) Eighteen months.

Back 322

C) Twelve Months

Front 323

ch10 (website): A successful action for trademark dilution requires:
A) Proof that the public is confused by the junior mark.
B) Any use of the junior mark whether the public is confused or not.
C) Proof of a willful intent to trade on the owner's reputation or cause dilution of the famous mark.
D) Proof of intentional or unintentional conduct that trades on the owner's reputation or causes dilution of the famous mark.

Back 323

C) Proof of a willful intent to trade on the owner's reputation or cause dilution of the famous mark

Front 324

ch11 (website): Shareholders elect the officers of the corporation.
A) True
B) False

Back 324

False; Shareholders elect the members of the board of directors

Front 325

ch11 (website): Failure to notify third parties that an agent no longer represents you leaves you open to contractual liability based on implied authority should the former agent enter into a contract with the third party in your name.
A) True
B) False

Back 325

Flase; leaves you open to contractual liability based on APPARENT AUTHORITY

Front 326

ch11 (website): A partnership can be formed by an express agreement but not an implied agreement.
A) True
B) False

Back 326

False; can also be an implied agreement based on the conduct or actions of the parties

Front 327

ch11 (website): Partnerships are tax -paying entities.
A) True
B) False

Back 327

False; not taxable

Front 328

ch11 (website): Limited partners will lose the benefit of limited liability if they:
A) Act as an agent of the partnership.
B) Approve or disapprove an amendment to the partnership document.
C) Act as a guarantor of the partnership's obligations.
D) Make managerial decisions on behalf of the partnership.

Back 328

D)make managerial decisions on behalf of the partnership

Front 329

ch11(website): sole proprietorship's income is:
A) Double-taxed.
B) Not taxed.
C) Taxed as income of the proprietor.
D) Taxed at the entity level and then again at the owner level

Back 329

c) Taxed as income of the proprietor

Front 330

ch11 (website): Corporate shareholders have:
A) No personal liability.
B) Limited liability.
C) Unlimited liability.
D) No rights and no liabilities

Back 330

B) Limited liability

Front 331

ch11 (website): Taxes on corporate earnings are paid by:
A) The employees.
B) Stockholders directly.
C) The corporation.
D) Officers and board members

Back 331

C) The corporation

Front 332

ch11 (website): corporation is a/an ________ entity created under the authority of a state's law:
A) Real, tangible.
B) Real, intangible.
C) Artificial, tangible.
D) Artificial, intangible.

Back 332

D) Artificial, intangible

Front 333

ch14 (website): The burden of proof when alleging a due diligence defense is on the expert.
A) True
B) False

Back 333

True

Front 334

ch14 (website): Contracts to buy and sell securities are finalized during the post effective period.
A) True
B) False

Back 334

True

Front 335

ch14 (website): The prospectus provides expert analysis of a particular security's expectations of future worth.
A) True
B) False

Back 335

False;

Front 336

ch14 (website): Sarbanes-Oxley created the crime of conspiring to commit securities fraud.
A) True
B) False

Back 336

True

Front 337

ch14 (website): Intent to deceive or mislead is called scienter.
A) True
B) False

Back 337

True

Front 338

ch14 (website): Which of the following parties is not required to comply with the Securities Act of 1933?
A) Buyers.
B) Sellers
C) Controlling persons.
D) Underwriters.

Back 338

A) Buyers

Front 339

ch14 (website): The party that participates in the original distribution of securities by selling such securities for the issuer or by guaranteeing their sale is called a/an:
A) Issuee.
B) Controlling person
C) Underwriter.
D) Seller.

Back 339

C) Underwriter

Front 340

ch14 (website): Which of the following is not a defense to civil liability under the Securities Act of 1933?
A) Materiality.
B) Statute of limitations.
C) Due diligence.
D) Assumption of risk.

Back 340

D) Assumption of Risk

Front 341

ch14 (website): Due diligence requires that an expert prove that a ________ investigation of the financial statements of the issuer and controlling persons was conducted.
A) Strict.
B) Open.
C) Public.
D) Reasonable.

Back 341

D) Reasonable

Front 342

ch14 (website): Sarbanes-Oxley:
A) Created liability for short swing profits
B) Requires CEOs to certify financial statements.
C) Governs intrastate securities transfers not regulated by federal law.
D) Increased criminal penalties for use of nonpublic information

Back 342

B) Requires CEOs to certify financial statements

Front 343

ch9 (website): The classification of crime is based on the punishment imposed in the event of a conviction.
A) True
B) False

Back 343

True

Front 344

ch9 (website): A city building inspector, inspecting for building code violations, must obtain a search warrant if the owner of the premises objects to the search.
A) True
B) False

Back 344

True

Front 345

ch9 (website): A person can be convicted of conspiracy even if they did not know all of the facts of the crime.
A) True
B) False

Back 345

True

Front 346

ch9 (website): Burglary, by definition is always a theft crime.
A) True
B) False

Back 346

False

Front 347

ch9 (website): The standard that a grand jury uses in determining if the evidence is sufficient to issue an indictment is probable cause.
A) True
B) False

Back 347

True

Front 348

ch9 (website): Grand juries:
A) Determine the guilt or innocence of the accused.
B) Deal with misdemeanors.
C) Determine if there is sufficient evidence to warrant a trial.
D) All of the above.

Back 348

C) Determine if there is sufficient evidence to warrant a trial

Front 349

ch9 (website): Grand jury proceedings are:
A) Open to the public.
B) Secret.
C) Presided over by a judge.
D) The same as a civil proceeding

Back 349

B) Secret

Front 350

ch9 (website): A grand jury transcript may be used at trial to:
A) Make additional charges.
B) Impeach a witness.
C) Substitute for testimony of witnesses unavailable at trial.
D) Give a judge background and insight as to how the indictment was arrived at

Back 350

B) Impeach a witness

Front 351

ch9 (website): Any transaction or event knowingly committed by a conspirator in an attempt to accomplish some object of the conspiracy is called an:
A) Object act.
B) Oblique act.
C) Overt act.
D) Obligatory act.

Back 351

C) Overt act

Front 352

ch9 (website): A burglary is committed when one breaks into a building with intent to:
A) Steal the occupant's jewelry and money.
B) Murder the occupant.
C) Rape the occupant.
D) All of the above.

Back 352

D) All of the above

Front 353

ch14: Which securities act started initial public offering?

Back 353

Securities Act of 1933

Front 354

ch14: What did the Securities Act of 1934 pertain to?

Back 354

regulates transfers of sercurities after the initial sale

Front 355

ch14: What is the purpose of Security Laws?

Back 355

a. started as a measure to help US overcome the great depression
b. designed to give investors accurate information about investments
c. create and restore investor confidence
d. discourage bad behavior
e. regulate investments in whatever form they are made and by whatever name they are callled

Front 356

ch14: What is the SEC? What are they responsible for administering? How many commissioners are appointed by the president? How long are their terms? What two powers does the SEC have?

Back 356

Securities and Exchange Commission

Responsible for administering federal securities laww

5 commissioners appointed by the president

terms are 5 years

quasi-legislative and quasi-judicial powers

Front 357

ch14: What is a sceruity?

Back 357

Investment by an investor in an enterprise with profits to come solely from the efforts of the persons other than the investor
- just about any stake in ownership or debt of a company

Front 358

ch14: What are the facts of the SEC v. Edwards case? What is the procedural history? What is the issue? What is the holding? What is the reasoning?

Back 358

Facts:
-Edwards through his corporation ETS offered public investment opportunities in payphones
Investor paid $7,000 to own a payphone and offered $82/month under lease arrangement with Edwards company. Investor would receive $7,000 back at end of 5 year term
ETS could not pay investors and filed for bankruptcy
SEC brought action against ETS for civil damages from alleged violations of security law

Procedural history:
- TC in favor of SEC
C/A 11th circuit reversed in favor of ETS
Supreme Court. Granted Cert. Reversed and remanded

Issue:
- Whether a money making scheme is excluded from the term investment contract simply because the scheme offered a contractual entitlement to a fixed, rather than a variable return

Holding?
- Promise of a fixed return does not preclude a scheme from being an investment contract and thus a security subject to federal security law

Reasoning:
- Investment contract is in

Front 359

ch14: What did the Sarbanes-Oxley Act follow on the heals of?

Back 359

major accounting scandals

Front 360

ch14: How did the Sarbanes-Oxley Act want to revitalize the SEC?

Back 360

by increasing SEC authority by increasing budget

Front 361

ch14: What did the Sarbanes-Oxley Act create? What is purpose of this created reform?

Back 361

created the Public Company Accounting Oversight Board

purpose was to give Oversight of accounting firms that audit public companies. these firms must register with PCAOB

Front 362

ch14: What is an audit? Who performs an audit?

Back 362

an independent assessment of the fairness by which a company's financial statements are presented by its management

performed by competent, independent and objective person(s) known as auditors or accountants

Front 363

ch14: What shift occurred in the key audit provisions?

Back 363

auditors maintain trust of public and corporate shareholders

Front 364

ch14: Through Sarbanes-Oxley, how did Congress change the punishment for committing securities fraud?

Back 364

Punishment strengthened for securities fraud
b. Lengthened statute of limitations 2 years/5 years
c. crime of conspiring to commit securities fraud
d. improved protection for whistleblowers

Front 365

ch14: Who did the Sarbanes-Oxley Act provide protection for?

Back 365

improved protection for whistleblowers

Front 366

ch14: What did the Securities Act of 1933 allow?

Back 366

initial sale of securities to the public

Front 367

ch14: What is an issuer?

Back 367

one offering security

Front 368

ch14: What is an underwriter?

Back 368

participates in original distribution of securities by sale or guarantee of sale of securities eg. investment bankers

Front 369

ch14: What is a controlling person?

Back 369

the person who has control of, or is controlled by, the issuer of securiies in securities law

Front 370

ch14: What is a seller?

Back 370

a person who sells or contracts to sell goods

Front 371

ch14: What documents must be prepared by issuers of securities when compiling with federal law?

Back 371

i. Registration statement. detailed disclosure of financial information about the issuer and the controlling individuals involved in the offering of security for sale to the public for the first time
ii. Prospectus. legal document describing secuirites - sufficient facts so he can make investment decision

Front 372

ch14: What defenses may be used to avoid civil liability with the Securities Act of 1933?

Back 372

1)Materiality: the false or misleading info may not important (material) and should not have an impact on the purchaser's decision-making process

2)The Statute of Limitations: defense for both civil and criminal liability; the basic period is one year which does not start to run until the discovery of the untrue statement

3)Due diligence: exper must prove that a reasonable investigation of the financial statements of the issuer and controlling persons was conducted

Front 373

ch14: What does the Security Exchange Act of 1934 regulate?

Back 373

transfers of securities AFTER the initial offering

Front 374

ch14: True or False. A plaintiff in a suit under Rule 10b-5 must prove damages.

Back 374

True

Front 375

ch14: Who is an insider?

Back 375

owns more than 10% of any security and is a director or an officer of the issuer of the security

Front 376

ch14: What are short-swing profits?

Back 376

the proceeds gained by an insider buying and selling, or vice versa, securities within a six-month time period. Such profits are considered to be illegal.