MGMT 209/211 Mass ReviewMatthew Erickson

merickson@tamu.eduhttp://people.tamu.edu/~merickson

12/05/073:00 – 6:00 PM

Chapter 1

• Sources of Law– Constitution– Legislative (Statutory)– Executive– Judicial (Common Law)

• Court cases• Tell how laws are interpreted• Court’s position in hierarchy tells how much weight

a case will have

Classification of Law

• Remedies at Law v. Remedies in Equity– From English System

• Federal v. State

• Substantive v. Procedural

• Public v. Private

• Civil v. Criminal

Public v. Private v. Civil v. Criminal

Chapter 2

• Articles of Confederation v. Constitution– Ability to tax– Ability to raise army– Shay’s Rebellion– Federalist Papers– Bill of Rights– Article 1, Section 8—Enumerated Powers

Checks and Balances• Legislative Power

– Internal (Bi-Cameral)– Executive (Override Veto, Impeachment)– Judicial (Confirmation, Impeachment, Amendments)

• Executive Power– Internal (Appointment)– Legislative (Veto, Persuasion)– Judicial (Appointment)

• Judicial Power– Internal (Appellate Review)– Executive (Judicial Review)– Legislative (Judicial Review)

Interstate Commerce Clause

• For government regulations to be valid, they must be ‘linked’ to a power given in Article 1, Section 8

• The power of the government to regulate interstate commerce is the most widely used power

• The Supreme Court has widened the meaning of this clause greatly

Broadening the Interstate Commerce Clause

• Gibbons v. Ogden

• NLRB v. Jones & Laughlin Tell Corp.

• Wickard v. Filburn

• McLain v. Real Estate Board of New Orleans, Inc.

Ollies BBQ Explained

• Cumulative Effect Principle (Wickard)

• Commerce crossing state lines is not necessary—effect (cumulative effect) crossing state lines is enough

• Congressional power is broad and sweeping

Interpretation Timeline

Necessary and Proper ClauseSupremacy Clause

• Necessary and Proper Clause (NPC) A.K.A. Elastic Clause A.K.A. Implied Powers Clause

• NPC is the second most commonly used way to regulate businesses

• Supremacy Clause CAN be used in areas of concurrent jurisdiction

• Courts interpret whether substantial interference occurs

Bill of Rights

• Commercial Speech—Central Hudson Test (Legal, Interest, Advancement, Narrow)

• Religious Holidays—Reasonable Accommodations and Undue Hardship

• Self Incrimination does not apply

• Due Process—Sliding Scale– Substantive—Protection in the law– Procedural—Protection in the process

Due Process

Bill of Rights

• Equal Protection– Used as a way to incorporate federal

protections to states as well

• Right to Privacy– Effects business policies

Chapter 3—Court System

• Flow of cases– Trial Court (s) (Plaintiff and Defendant)– Appellate Court (s) (Appellant and Appeale)– Supreme Court (writ of certiorari)

• US Federal Court System—Clear, Simple

• Texas State Court System—Muddled

Federal Court System

Jurisdiction, Standing, and Venue

• Jurisdiction—Subject Matter and Person/Thing– In personum– In rem– Quasi In Rem– Federal Jurisdiction

• Standing– Stake– Issue

• Venue– Where it is proper– When it can be changed

Long Arm Jurisdiction

• Another kind of In Personum Jurisdiction

Trial Procedure Flow

Miscellaneous Terms and Facts

• Amendments

• Writ of Certiorari

• Stare Decisis

Texas State Court System

Texas Court System

– Dark Blue Dots represent first tier trial courts (municipal courts, JOP courts, and small claims courts)

– Light Orange Dots represent second tier trial courts (county courts, county courts at law, and district courts)

– Light Blue Dot represents court of appeals (14 of these)—Handle both Civil and Criminal Appeals (No Death Penalties)

Texas Court System

– Light Green Dot represents the Texas Supreme Court (Civil Appeals Only)

– Dark Green Dot represents the Texas Court of Criminal Appeals

• Death Penalty Cases come here from district court• Handles criminal cases only

– Trial de novo—If a case is tried and appealed from a first tier trial court, a new trial (trial de novo) is held at the second tier trial court level

Chapter 4

• Contract Distinctions– Express, Implied, and Quasi

• Express—Explicit; stated or written

• Impied—Contract without words (or written document)

• Quasi—Missing element (discussed later on) but court enforces contract anyway

Types

– Conditional v. Unconditional• Unconditional—The contract is valid immediately; a

duty to perform the action is present

• Conditional– Subsequent—A condition must happen before the

contractual obligation occurs– Precedent—A condition that ends the contractual

relationship– Concurrent—Both parties must do their actions

simultaneously (condition for both is the performance of the other party)

Types

– Bilateral v. Unilateral• Bilateral—Promise for Promise

– Acceptance of contract is done by making promise

• Unilateral—Promise for Act– Acceptance of contract is done by performing the stated

act– No breech can occur for not doing the act (breech for no

payment is still possible)

Types

– Executory, Executed, and Partially Executed• Executory—Contract has not been performed

• Executed—Contract has been performed

• Partially Executed—Contract has been performed by fewer than all of the parties (but at least one)

Types

– Valid, Void, Voidable, and Unenforceable• Valid—Legal contract that must be performed

• Void—No contract exists; no duty exists

• Voidable—One party (or more) has the right to terminate the contract (usually under certain conditions) without legal liability

• Unenforceable—Contract that is valid but not performable (often due to change in the law)

Elements

– Agreement

– Consideration

– Capacity

– Legal

– Assent

– (Some) Written

Agreements

• Offer– Intent– Terms– Communication– Termination

• Rejection • Revocation• Time• Counteroffers

• Acceptance– Unconditional– Unequivocal– Legally Communicated

Consideration

• Definition—Mutual exchange of benefits and detriments

• Adequacy– Courts do not bail you out of a dumb deal

• Illusory Promises– Promise with no backing, not enforceable

Capacity

• Minors—Voidable (Except Necessities and Military Service)

• Intoxication—Proof is a problem

• Insane– Adjudicate (Legally Declared)

• Contracts are void• No restitution is owed

– Insane (But Not Legally Declared)• Voidable if the nature, terms, or conditions of the

contract were not understood• Restitution is owed

Legal

• Cannot make contract for an illegal act

• Unconscionable—grossly unfair agreement that takes advantage of certain circumstances

• Exculpatory—Disclaimers of negligence (especially gross negligence) when no viable alternative exists

Assent• Mistake

– Unilateral—No relief can occur– Mutual Mistake Value—No relief can occur– Mutual Mistake Fact—Voidable by either party

• Fraud– Innocent party

• Rescind contract• Enforce Contract, Sue for Damages

– Elements Fraud• Misrepresentation• Attempt to Deceive• Innocent Party Justifiably Relied on Misrepresentation• Innocent Party Injured

– Duress--Rescindable

Written

• Incapable of being executed in one year

• Sale of goods over $500

• Sale or transfer of an interest in real property

• Promise to perform the obligation of another

• Promise made in contemplation of marriage

Damages

• Monetary– Compensatory– Consequential—Breech Caused by Special

Circumstances– Liquidated Damages—Damages for Delay

Completion

• Equitable– Rescission and Restitution– Reformation—Rewriting Contract– Specific Performance

Chapter 5Purposes and Damages of Tort Law• Purposes

– Compensation and Appeasement– Justice– Deterrent– Social Insurance

• Damages– Compensatory– Punitive

Parts of Tort

• Duty (For Some Torts)

• Action (Lack of Action)

• Harm/Injury

• Causal Link

• Defenses

Personal Intentional Torts

• Assault and Battery• False Imprisonment• Intentional Infliction of Mental Distress• Invasion of Privacy• Defamation

– Libel--Permanent– Slander--Verbal

• Malicious Prosecution• Fraud

Business Intentional Torts

• Product Disparagement

• False Advertising

• Intentional Interference with a Contractual Relationship– Employment– Economic Advantage

• Texaco v. Pennzoil

Torts and Property

• Real v. Personal Property• Tangible v. Intangible Property• Trespass to Land

– Removal or permission is granted– Reasonable force must be used in the removal– Attractive Nuisance Doctrine—reasonable care

• Trespass to Personal Property• Conversion• Nuisance

Torts and Intellectual Property

• Copyrights

• Fair Use Doctrine

• Patents

• Trademarks and Service Marks

• Trade Dress

• Trade Names

• Trade Secrets

Negligence

• Elements– Duty– Breech– Harm– Link

Duty of Care, Breech, and Harm

• Duty of Care– Definition– Variable– No duty to rescue (ordinarily)

• Reasonable (Insert Name Here) Standard

• Injury or Harm– Physical– Mental (Maybe)

• Hand Formula

Link

• Cause in Fact—But for Test

• Proximate Cause—Foreseeability and Palsgraph

Defenses

• Assumption of Risk

• Contributory v. Comparative Negligence

• Comparative Negligence and Damages

• Superseding Cause

• Strict Liability

Outline Chapter 6

Negligence Theory

• Know Auto Cases

• Strict Liability

• Market Share Liability

• Warranty Theories

Negligence

• Duty of Care and the Foreseeable Zone of Danger

• Breach of Care

– Reasonable Design

– Hand Test—Least Cost Avoider Principle

Hand Formula

Strict Liability

• $402A 2nd Restatement of Torts

• Consumer Expectations Test

• Caveat Venditor

Rational for Strict Liability (And Why Some Justifications are Wrong)

• Helpless Consumer

• Benefits Come With Burdens

• Social Insurance

Market Share Liability and Warranties

• Not valid in all states

• Based on percentage of sales/market share

• Inconsistent with other legal principles

• Warranty of Merchantability

Administrative Agencies

• Donovan and Warrant Less Searches

• ALJ

• Appeal Process

• Merrill and Rule Awareness

• FOIA and GISA

• Sunset Laws

• Ethics and Special Interest Groups

Anti Trust

• Sherman Section 1—Restraint of Trade

• Sherman Section 2—Illegal Monopolies

• Clayton

• FTC

• RoR—Additional Considerations

• Mergers and Section 7 of Clayton

• Review New Chart

Anti-Trust Exceptions

• Natural Monopolies

• Labor Unions

• Agricultural

• States

• Foreign Trade

• Professional Baseball

• PAC

• Military

• SBA

Labor v. Management

• Norris LaGuardia– Stops injunctions against strikes– Outlaws Yellow Dog Contracts– Made labor unions and strikes legal

• Wagner (National Labor Relations Act)– NLRB and Management ULP

• Taft-Hartley (Labor Relations Act)– Union ULP

• Landrum-Griffin– Open Union Disclosure (Finance Oriented)

Chapter 10• Sole Proprietorship

• Partnership– LP (GP and LP)– LLP (Liability for negligent partner only)– LLC (Members)

• Corporations– C– S– Closely Held

Chapter 11

• Voting

• Apathy

• Proxy

• Derivatives (action on behalf of BOD)

• Business Judgment Rule

Chapter 11

• ’33—Initial

• ’34—Continuing

• Insider Trading– 16b—Named Insiders, Short Swing Profits– 10b(5)—Everyone, Treble Damages

• Takeovers

• SOX

Chapter 12

• Reasonable Consumer Standard

• Deceptive Advertising v. Unfair Advertising

– Volvo

– Listerine

– Marlboro Man

Chapter 13

• FLSA (Minimum Wage, Overtime, Child Labor)

• Employment at Will

• OSHA

• Workers Compensation—State Law

• Testing and Monitoring– Drugs and Alcohol– Internet, Desk, Locker, ect…

Chapter 13

• Equal Pay Act ’63– Requirements—Equal pay for equal work– Exceptions—Seniority, Merit, Non Gender

Factor

• Comparable Worth—Not Yet, Position/Occupation Based

• Title VII– Race– Color– Sex– Religion– National Origin

Chapter 13

• EEOC

• Disparate Treatment

• Disparate Impact

• Pregnancy—Some Protections for Women

• Quid Pro Quo

• Hostile Working Environment

• Sexual Preference—Not enforced, Clinton Executive Order

• Age

Chapter 13• Disabilities

– Reasonable Accommodations, Cost Benefit Approach

• Affirmative Action—No Discrimination Based On– Race– Color– Religion– Sex– National Origin– Disability– Age– Sexual Preference

• Working to Correct Imbalances

Clean Air Act

• Primary Level—Humans

• Secondary Level—Environment

• SIP/AQCR—State Implementation Plans and Air Quality Control Regions

• Attainment/Non-Attainment Regions

• RACT—Old Stationary Sources

• BACT—New Stationary, Non-Attainment

• MACT—Toxic Areas

Water Regulations

• 1886 Rivers and Waterways Act –Navigable

• Clean Water Act—Water into Navigable

• Point Sources– Point at which pollutant is placed into water– Best Practical Control Technology– Self Reporting Requirement

• Wetlands—Army Permission for Draining

• Oceans—Marine Protection, Research, and Sanctuaries Act (MPRSA)

• Drinking Water Safety Act –BACT

Miscellaneous Environmental Regulations

Comprehensive Environmental Response, Compensation, and Liability Act CERLA

– Land Owner Targeted– Environmental Studies Required

• Nuclear Waste – EPA/NRC Environmental Protection

Agency and Nuclear Regulatory Commission

• Endangered Species Act (Construction)

• Tort of Nuisance

The Pollution Market (Allowances)

• Environmental Regulation through Economics

• Reasonably Successful

• Supply is Hard to Manage

• Requires some Government Backing

Asian Markets• No Worker Regulation

• No Minimum Wage

• 4 Tigers– Hong Kong, China (Taiwan), Singapore,

South Korea

• Copiers– Philippines, Indonesia, Malaysia, Thailand

Other Markets

• Central and South America—Import Substitution

– Make everything you need– Make citizens buy local– Import what you are unable to make

• USSR—Poverty a Barrier to Commerce• China (Mainland)

– Communist Country– Booming Economy– Building Army

Other Markets

• India– Biggest Democracy in World– Increasing in Education, Economy

Booming

• Political Stability is Questionable– Pakistan has Nuclear Weapons– Business are Concerned

• Africa– Untapped Resource, Political Instability– Disease—AIDS, No Working Class

Fair v. Free Trade• Fair Trade versus Free Trade

– Free• Free Competition, Open Markets

– Fair• Government Protection, Tariffs

– Tax on Foreign Products– Encourages Domestic Products

Currency Trading (Pegged v. Floating)

• Exchange Rates– Fluctuation is Problem

– 2 Ways to Determine• Floating

– Dollar– Pound– Euro

• Fixed (Weaker Economies)– Pegged to currency

Currency Trading

• Buying Foreign Stocks and Bond– Popular Stocks

• U.K., England, Canada, Netherlands, Germany, Japan

• Banks– Bermuda– Switzerland

• 11+ Trillion Market

Types of Trading Blocks• Regional trading blocks

– Four types (build on each other)• Free Trade Area

– Example—NAFTA (North American Free Trade Agreement)

• Customs Union– Starting to put economies together– Generate common trading agreement for

other countries– Example—Mercosure (sp?)

Types of Trading Blocks• Regional trading blocks

• Common Market– Putting markets together– Agree to specialization

• Economic Union– Example—European Union

» 25 countries, Government, Flag, Currency

Questions?

Thanks for Coming and Good Luck!

MGMT 209/211 Mass ReviewMatthew Erickson

merickson@tamu.eduhttp://people.tamu.edu/~merickson

12/05/073:00 – 6:00 PM