Final Exam Study Guide BUL 3310 RUBINAS Fall 2012 110 Questions 47 True False 63 Multiple Choice Test Outline Chapters Covered 5 9 12 13 20 Chapter 5 Business and the Constitution I The Commerce Clause Article I Section 8 a Standards for state regulation of commerce i If Congress has regulated there is an overriding concern about the Supremacy Clause ii If Congress has not acted there is a benefit burden analysis iii Balance police power state s interest in regulation with the burden on commerce iv State law cannot give in state businesses an advantage II Congressional Regulation of Foreign Commerce a The power of Congress to regulate foreign commerce applies regardless of where it begins and ends III Taxation a Congress Power to Tax i State and Local Taxations of Interstate Commerce 1 Interstate business is not exempt from state and local taxes just because they are interstate businesses b Requirements for Valid State Tax inventory stored there c Must be apportioned fairly i Must be a sufficient nexus between the state and the business being taxed ii Examples Does business there holds property titles there manufactures there i Example A corporation doing business in fifty states cannot have all income taxed in all fifty states must be apportioned according to its revenues in the states IV Bill of Rights a First Amendment i Provides some protection for commercial speech 1 Commercial speech is speech used to further the economic interests of the speaker ii Corporate political speech 1 Corporate participation in campaigns is given full First Amendment protection iii Advertising and commercial speech protection 1 Can regulate advertising 2 Substantial government interest must be furthered 3 Is the regulation the least restrictive means of accomplishing the interest i The right of government to take private property for public purpose for just b Eminent domain compensation 1 Basically the government can take your land if they are using it to build a highway or a school or something for the public if they fairly compensate you c Equal Protection i Elements of Protection for Regulation ii Regulation MUST apply to all businesses 1 Example Courts have struck laws that allow small stores to stay open on Sunday while large stores could not V Due Process a Procedural Due Process ii Right to notice of hearings iii Right to be heard b Substantive Due Process i Applies to criminal civil and administrative proceedings 1 Example Summons and complaint provide notice to defendants i State laws cannot substantively eliminate rights without some benefit 1 Law must be logically related to legitimate governmental purpose a Example Sunday blue laws stores are closed by law states must be able to show economic health social benefits of such closure VI International Law and Constitutions a General Types of Constitutions Found in the United States and England b Code Law Countries Found in Mexico and Many Europeans Countries c Islamic Law Based on Religion Governs All Aspect of Personal and Business Life Law Chapter 9 Business Tortes Tort a A tort is a Civil wrong that is an Interference with someone s person or property such that I II i Latin Word Tortus Crooked Dubious Twisted injury results Torts vs Crimes a Tort is a Private Wrong i Injured party seeks remedy ii Recovers damages from the one who commits the tort b Crime is a Public Wrong i Wrongdoer is prosecuted ii Pays fine to government or is jailed to pay debt to society i Accidental harms that result from the failure to think through the consequences ii Still have liability but there are defenses III Types of Torts a Intentional Torts i More than an accidental wrong b Tort of Negligence c Strict Tort Liability i Absolute standard of liability ii Used in product liability cases d Other types i Property Torts 1 Trespass 2 Disparagement 3 Palming off 4 Negligence ii Personal Torts 1 False imprisonment 2 Defamation 3 Battery 4 Assault 5 Emotional distress 6 Negligence IV Defamation a Untrue statement by one party that is published to a third party i Slander is oral or spoken defamation ii Libel is written defamation b Elements of Defamation i Statement about a business or person s reputation or honesty that is untrue ii Statement is directed at business and made with malice and intent to injure iii Publication 1 Someone heard and understood the statement iv Damages 1 Economic losses such as damage to reputation c Defenses towards Defamation i Truth is a complete defense ii Privileged speech two types 1 Absolute privilege matter at hand 2 Qualified privilege a Testimony under oath and legislative debate so long as related to the 3 Opinion privilege a Media so long as item published without malice which is knowing information is false or with reckless disregard for whether it is true or false a Analysis and op ed articles choice of words and thoughts on conduct or actions calling someone a deadbeat who has in fact not paid his bills are not defamation and enjoy First Amendment protection V Contract Interference a Elements of Contract Interference i Third party knew of existing contract between two primary parties ii Third party intended to interfere with or cause a breach contract iii Original party to the contract is injured by breach of contract induced by the third party VI False Imprisonment a Custody of Someone Else for any Period of Time Against Their Will b Need Not Establish Physical Damages Just the Fact That They are Detained Establishes Sufficient Damages c Defense of Shopkeeper s Privilege i Can detain for reasonable time ii Must have basis for detaining the individual VII Intentional Infliction of Emotional Distress a Liability for conduct that exceeds all bounds of decency b Difficult for plaintiff to establish emotional distress c Has been used by debtors against collectors VIII Invasion of Privacy a Public Disclosure of Private Facts b Appropriation of Another s Name For Commercial Advantage c Intrusion Into Private Affairs of Another The First Paparazzi Case i Galella v Onassis 1972 ii The court ruled Galella had invaded Jacqueline Kennedy Onassis privacy d HIPAA Protects Health Patient Privacy a Unauthorized Use of Someone s Name Voice Image or Likeness For Commercial b Even if Manner of Use is Accurate it is a Tort Because of the Use Without Authorization IX Appropriation Advantage X Negligence a Duty Element One i All persons are expected to behave as ordinary and reasonably prudent persons do 1 Standard of the law is not always
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