Exam 2 Final Rubinas Fall 2012 Taxation of Business 1 Congress power to tax Article 1 Section 8 The ability of congress to tax has been upheld 2 Requirements for Valid State Tax a Tax cannot discriminate against interstate commerce b Tax cannot be an undue burden on interstate commerce c Must be a sufficient nexus between state and the business being taxed i Ex Does business there holds property titles there manufactures there etc d Must be apportioned fairly i 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 Nexus State vs Federal Regulation 1 Supremacy clause and Preemption a Article VI exists to determine which laws control in the event both state and federal governments regulate the same thing If state law directly conflicts with federal law state law is invalid b 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 conflict 3 Bill of Rights a 1st Amendment Freedom of Speech i 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 protection a Corporate participation in campaigns is giving full first amendment 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 Torts 1 Torts generally speaking When person had done wrong to someone Private wrong Intentional more than an accident a 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 c Tort of negligence Accidental harms that result from failure to think through Intentional tort More than an accidental tort consequences Still have liability but there are defenses Property Torts Trespass Disparagement Palming off Negligence Personal Torts False imprisonment Defamation Battery Assault Negligence 4 Defamations Untrue statement by one party that is published a Slander is either spoken or written b Elements i Statement about a business or persons reputation or honest that is untrue ii Statement is directed at business and made with malice with intent to injure iii Publication Someone heard and understood the statement iv Damages Economic losses such as damage to reputation v Biggest problem Being able to connect an economic loss issue 5 Defenses a Truth is complete defense b Defense of privileged speech i Absolute Testimony under oath and legislative debate ii Qualified Media Item published w o malice iii Opinion Analysis and op ed articles 6 Defenses to Negligence a Contributory negligence Plaintiff is also negligent i Operates as a complete bar to recovery b Comparative Negligence i Compare acts of plaintiff and defendant assess blame for accident ii Reduce plaintiff s recovery by amount of fault c Assumption of Risk Plaintiff knew of inherent risk and went forward anyway Contract Interference 1 Elements party 2 False Imprisonment a Third part knew of existing contract between two primary partners b Third party intended to interfere with or cause a breach contract c Original party to the contract is injured by breach of contract induced by the third a Custody of someone else for any period of time against his her will b Need not establish physical damages c Just the fact that they are detained establishes sufficient damages d Defense of shopkeeper s privilege i Must detain for reasonable time ii Must have basis for detaining individual 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 creditors 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 i The first paparazzi case 3 4 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 use without authorization c Midler v Ford Motor Co 5 Appropriation advantage 6 Negligence a Element one Duty All persons are expected to behave as ordinary and reasonably prudent persons do b Element two Breach of Duty Failure to comply with established standard of conduct But For test c Element three Causation Breach of duty caused the plaintiffs injuries d Element four Proximate Cause Foreseeability e Element five Damages Medical bills lost wages pain and suffering Contracts 1 A contract is a promise for breach of when the law gives a remedy 2 Common Law a Based on common law b Electronic Signature in Global and National Commerce Act of 2000 E Sign 3 E commerce and Contracts a Uniform electronic transactions act UETA i Contracts formed on the internet ii Law in 48 states i Federal Law ii Requires party for electronic signature c Uniform computer information transaction act 4 Bilateral vs Unilateral offeree promise i E g Bank Loans a Bilateral First party offeror makes a promise in exchange for the second party s b Unilateral First party offeror
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