Exam 2/Final Rubinas Fall 2012Taxation of Business1) Congress’ power to tax: Article 1 Section 8.• The ability of congress to tax has been upheld2) Requirements for Valid State Tax:a) Tax cannot discriminate against interstate commerceb) Tax cannot be an *undue burden on interstate commerce. c) Must be a “sufficient nexus” between state and the business being taxedi) Ex: Does business there, holds property titles there, manufactures there, etc.d) Must be apportioned fairlyi) A corporation doing business in 50 states cannot have income taxed in all fifty states-----must be appropriated according to revenues. e) Case 5.3 Quill v. N. Dakota (1992)i) Can states tax companies that send stuff to the state?(1) No, no sufficient NexusState vs. Federal Regulation1) Supremacy clause and Preemptiona) Article VI exists to determine which laws control in the event both state and federal governments regulate the same thing. b) If state law directly conflicts with federal law, state law is invalid. 2) Whether there is preemption is controlled by answering several questions.a) What does legislative history provide?b) What is the level of detail in the federal regulation?c) What benefits flows from federal regulation?d) Nature of conflict3) Bill of Rightsa) 1st Amendment-Freedom of Speechi) Provides some protection for commercial speech (ads). (1) Commercial speech is used to further the economic interests of the speaker.(2) Advertising and commercial speech protection.(a) Can regulate advertising(b) Substantial government interest(c) Is the regulation the least restrictive means of accomplishing the interest(3) Corporate political speech(a) Corporate participation in campaigns is giving full first amendment protection.b) Eminent Domain: i) Right of government to take private property for public purpose with just compensation. (Condemnation)(1) Only with due process and just compensation and for public use.(a) E.g.: Highways, Schools, urban development, historical preservation, parks, etc. (b) New issue is question of taking property for economic development on revitalization or just new projects(c) Kelo vs. City of New London(2) Requirement: Due Process (14th)(a) Right to notice of hearings(b) Right to be heard(c) Applies to criminal, civil, and administrative proceedings(i) Summons and complaint provide notice to defendants(3) Requirement: Substantive due process(a) Subject matter(b) State laws cannot substantively eliminate rights without some benefit(c) Laws must be logically related to legitimate government purpose(d) Sunday Blue Laws: no commercial selling on Sunday: States must be able to show economic, health, and social benefit of such closures. Torts1) Torts: generally speaking: When person had done wrong to someone. (Private wrong)a) Intentional-more than an accident.b) Unintentional: *Negligence-engaged in conduct reasonable people would not do.2) Defamation: When you challenge someone’s integrity, truthfulness and character. 3) Tort: A civil wrong that is an interference with someone’s person or property such that injury results. a) Tort is usually a private wrong. b) Intentional tort: More than an accidental tort. c) Tort of negligence: Accidental harms that result from failure to think through consequences. Still have liability but there are defenses. Property Torts Personal Torts• Trespass -False imprisonment• Disparagement -Defamation• Palming off -Battery + Assault• Negligence -Negligence4) Defamations: Untrue statement by one party that is publisheda) Slander is either spoken or writtenb) Elements:i) Statement about a business’ or persons’ reputation or honest that is untrueii) Statement is directed at business and made with malice with intent to injureiii) Publication: Someone heard and understood the statementiv) Damages: Economic losses such as damage to reputationv) Biggest problem: Being able to connect an economic loss/issue5) Defenses: a) Truth is complete defenseb) Defense of privileged speech:i) Absolute: Testimony under oath and legislative debateii) Qualified: Media (Item published w/o malice)iii) Opinion: Analysis and op-ed articles6) Defenses to Negligence:a) Contributory negligence: Plaintiff is also negligent i) Operates as a complete bar to recoveryb) Comparative Negligence:i) Compare acts of plaintiff and defendant; assess blame for accidentii) Reduce plaintiff’s recovery by amount of fault.c) Assumption of Risk: Plaintiff knew of inherent risk and went forward anywayContract Interference 1) Elements:a) Third part knew of existing contract between two primary partners. b) Third party intended to interfere with or cause a breach contractc) Original party to the contract is injured by breach of contract induced by the third party.2) False Imprisonmenta) Custody of someone else for any period of time against his/her willb) Need not establish physical damagesc) Just the fact that they are detained establishes sufficient damages. d) Defense of shopkeeper’s privilege. i) Must detain for reasonable timeii) Must have basis for detaining individual3) Intentional infliction of Emotional Distressa) Liability for conduct that exceeds all bounds of decency. b) Difficult for plaintiff to establish emotional distressc) Has been used by debtors against creditors4) Invasion of Privacya) Public disclosure of private factsb) Appropriation of another’s name for commercial advantage. c) Intrusion into private affairs of anotheri) The first paparazzi case5) Appropriationa) Unauthorized use of someone’s name, voice, image, or likeness for commercial advantage.b) Even if Manner of use is accurate, it is a tort because of use without authorizationc) Midler v Ford Motor Co6) Negligence: a) Element one: Duty- All persons are expected to behave as ordinary and reasonably prudent persons dob) Element two: Breach of Duty: Failure to comply with established standard of conduct.c) Element three: Causation- Breach of duty caused the plaintiffs injuries. “But/For” test.d) Element four: Proximate Cause- Foreseeabilitye) Element five: Damages- Medical bills, lost wages, pain and suffering. Contracts1) A contract is a promise for breach of when the law gives a remedy. 2) Common Lawa) Based on common law.3) E-commerce and Contractsa) Uniform electronic transactions act (UETA)i) Contracts formed on the internetii) Law in 48 statesb) Electronic Signature in Global and National Commerce Act of 2000 (E-Sign)i) Federal Lawii) Requires
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