Assignment: Business law

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United States Constitution:

The U.S. Constitution establishes three branches of government: legislative (Congress); executive (president); and judicial (courts). The U.S. Constitution also establishes the powers of the federal and state governments. In some cases, the powers of these two systems of government are shared. In other cases, the U.S. Constitution, through the Supremacy Clause, provides that the federal regulatory scheme takes precedence over the state regulation of the same area or subject matter.

Common Law:

The collective body of court decisions throughout history comprises the common law. Judges of all courts below the Supreme Court will refer to previous cases (called precedent) to rule on present cases. The principle that precedent is binding on later cases is called stare decisis, which means, "let the decision stand."

Administrative Law:

Administrative agencies are created by Congress or by an order of the President. Their purpose is to carry out the day-to-day work of enforcing the statutes passed by Congress. Agencies have the power to create regulations, which are as binding as laws.

For an interesting discussion regarding the intersection of the executive and legislative powers, please read Has Obama Created a New Star Chamber by Rewriting the Law? (Links to an external site.)Links to an external site.

Torts

Torts are civil breaches of conduct that permit recovery by individuals who are victims of the breaches. To establish liability for a tort, there are various elements of proof required. For some torts, the party must establish a specific act and intent. For negligence, the party seeking recovery must establish that there was a duty (statutory or imposed as a general standard of conduct such as professional competence), a causal relationship between the breach of duty and the injury, and a foreseeability of the injury resulting from the breach of duty.

Intentional torts are those committed voluntarily and include false imprisonment, emotional distress, invasion of privacy, defamation (slander and libel), disparagement, contract or business relationship interference, trespass, and computer torts.

Liability for negligence is based on the standard of the reasonable person, a standard that requires a certain degree of care on the part of all citizens with respect to each other. The liability of the defendant is mitigated to the extent negligence of the plaintiff is established through the defenses of contributory or comparative negligence.

For a real life example of tort reform in action, please read Tort Reform Battle on the Bayou (Links to an external site.)Links to an external site..

Criminal Law

Society sets standards of conduct and labels breaches of those standards as crimes which are punishable by fines, imprisonment, or both. Crimes are classified as felonies (the more serious crimes) and misdemeanors. State statutes classify crimes and provide penalties. A crime consists of two elements: the mental state and the actual act or omission that constitutes the subject of the crime. Employers, including corporations, can be held liable for facilitating or encouraging an employee to commit a crime or for their failure to take action when it is required.

Planning to commit a crime is also a form of criminal activity and can be prosecuted as attempts or conspiracies. In some situations, part of the penalty for criminal conduct is restitution for victims. The victims may also seek recovery in a civil case. Because criminal penalties often involve fines, the government is given authority to ask for forfeiture of the defendant's property in certain circumstances.

Crimes that do not cause injury to persons or physical damage to property are called white-collar crimes. There are many forms of white-collar crimes including securities fraud, racketeering, bribery, and extortion, among others.

There are certain procedural rights guaranteed to those charged with crimes. Those rights include protection against warrantless searches under the Fourth Amendment and protections against self-incrimination under the Fifth Amendment. The Fifth Amendment also guarantees due process.

Bernie Madoff, convicted of fraud and operator of a Ponzi scheme, is an excellent example of white-collar crime in action. You may find the following article helpful in understanding Madoff's actions: Madoff Ponzi Scheme, Five Years Later (Links to an external site.)Links to an external site..

Legal Analysis and Reasoning

Class, as we begin to dive into our material, I would like to take a few minutes to explore legal analysis and reasoning with you. The court decisions that you may encounter this term are opinions.

Normally, the reported opinion in a case includes:

1. The essential facts, the nature of the action, the parties, what happened to bring about the controversy, what happened in the lower court, and what pleadings are material;

2. The issues of law or fact;

3. The legal principles involved;

4. The application of these principles; and

5. The decision.

When briefing a case, one must determine: (1) the facts of the case, (2) the issue or question involved, (3) the decision of the court, and (4) the reasons for the decision. All cases are decided with these four presuppositions in mind: (1) the court must decide the issue before it and (2) may not decide anything other than the issue before it; (3) the court decides this particular case based on general rules; and (4) everything a judge says in an opinion must be interpreted in relation to this particular case.

Final Thoughts

As we begin our journey together, start to consider how the law impacts you in your everyday life with regard to your family, career, friends, and society at large, especially businesses!

Please reach out if you have any questions or concerns. I am here to help make this a successful learning experience for you.

Forbes School of Business Faculty

DISCUSSION 1

Applying the Law to a Set of Facts

Read the Hypothetical Case Problem #1 at the end of Chapter 1 and respond to these questions:

• If Javier sued Energy-Auto Inc., identify who would be the plaintiff and the defendant.
• In which state or states can the suit be brought?
• Assume that Javier incurred $100,000 in damages.

o Analyze whether the suit can be brought in federal court

• Explain the advantages and disadvantages of federal versus state court for this type of suit.

DISCUSSION 2

Tort or Crime?

In Chapter 1 of the text you read about the Bailey v. Eminem defamation case where the court held Eminem's lyrics were protected by the First Amendment. Read the article and view the video (the links are listed under Week 1 Additional Learning Resources Required and Week 1 Multimedia Required) to the Pahler v. Slayer case. Respond to the following questions:

• Did the Pahler court use the same reasoning as used in Bailey v. Eminem?

• Should the court's decision in Pahler be different because a young girl was murdered?

• Recall the difference between a crime and a tort. Based on these two cases, analyze and discuss whether artists should be held liable for the actions of their fans.

Attachment:- Required Resources.rar