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mid term
Undergraduate 3

Additional Law Flashcards




cyber law: un resolved issues 

reletively new concept so there is going to be " holes" in the law that needs to be addressed. 

  1. is the "wide open, no standards" format of cybeerspace a positive or negative when it comes to e-commerce
  2. how does freedom of speech play a role in cyberspace settings?
  3. Does freedome of speech clash with the concept of security and intellectual property rights?
  4. will cyberspace facilitate trading across international boarders (free trade) without interference from rep. governments?
  5. who benefits from a world where no geographical, physical, or political limits apply? who suffers?
  6. what kind of legal sysytem does an increasing tech based society need? 

court’s jurisdiction over cyberlaw cases

  • just having a web site does not give sufficient jurisdiction 
  • court has to decide two things : 
  1. court can establish jurisdiction over a nonresident person or business based on the presence of a web site in a forum 
  2. defendents who use the internet to sell things are "purposely availing (making themselves avaliable)" themselves of doing business in every state and other countries throughout the world
  • they use interactivityto determine if the site gives personal jurisdiction - how much comm the site uses for person to person.

zippo "sliding scale "

developed in the zippo manufac. v. zippo dot com

used to determine jurisdiction, has three levels

  1. defendent clearly does business over internet, they enter into contracts w/ people and sell goods over internet
  2. info is exchanged on website, based on how much the site interacts with the user, if more, defendent is subject to personal jurisdiction
  3. passive website, is there just advertising services on site, low activity does not give personal jurisdiction


Strict Scrutiny Test


came out of ACLU v. CDA(comm. decency act)

  • judicial review process that challenges a policy that court says is invalid/unconstitutional, unless gov. can make a good arguement to justify poilcy.
  • this  ruled CDA unconstitutional becase it didnt allow free speech 
  • narrowly tailored requirement : law must be written just to fufill its goals
  • ruled CDA was not "narrowly tailored" to accomplish legitimate purposes 


States’ attempts to regulate sales and practices conducted via internet


pennsylvania passes internet child porn act, doesnt allow people to view sites that have cild porn on them 

  • some states dont let wine be shipped from one state to another, cant recieve wine from oregon if i live in washington.  supreme court took off state laws that said no interstate wine selling 
  • court ruled that commerce clause (prohibits discrimination against interstate commerce) breaks 21st amendment, now they can sell wine over internet 
  • cant regulate sale of pharm drugs, asking fed gov to help comsumers 


Censorship in other countries


·          Many countries block web sites for political, social, and other reasons; countries include: China, Iran, Burma, Syria, Tunisia, Vietnam, Omen, Sudan, Yemen, and the United Arab Emirates

  • also block sites that have gambling, porn, stuff talking about being gay


Intellectual property issues:



protects product, process for making, actual invention, machines or plants produced by asexual reproduction. gives patent holder right to product. 

lasts 20 years

infringement happens when: someone uses, sells, makes the same product without permission


Intellectual property issues:



mark,logo,design,picture used by producer of product that helps people identify product to someone. (nike -swoosh) 

helps makers by letting them have the one thing people will associate to their product. 


Intellectual property issues:


advertisers pay to have their ad display one someone starts to type something into search field 

Intellectual property issues:



when people or business geta domain name that is VERY similar to a popular one so that the owner of the popular one has to buy them out.


example "ebuy" so people mix it up with "ebay" ---- ebay will buy that person out so that they can erase it and keep only their domain name 


Intellectual property issues:





legal right to reproduce,publish,sell an expression. must be creative, fresh, and fixed( said a certain way)


nike---- just do it


Intellectual property issues:

anti cybersquatting protection act of 1999


reacts to confusion and piracy from cybersquatting ---

gives courts power to cancel or transfer domain name with damages from 1,000 - 100,000


Copyrights:  sharing software cases


A&M records v napster --> case that ruled napster intentionally did copyright stuff ( presenting materials online that encouraged people to violate copyright)

metro goldwyn mayer v grokster  --> 9th circut court of appeals said distruibutors of peer to peer file sharing can be liable for copyright infringement if they know users are breaking copyright rules. if they only provide software they dont have knowledge of infringement.  


E commerce issues 



fed laws --> congress passed the Electronic Comm Privacy Act 1986, prohibits people from intentionally sharing others personal info. 


allows you to sue ISP's who fail to protect email content 


common law privacy -- varies state to state, consists of privacy tort damages, privacy policy contracts on website. privacy policy lets people know how their info will be shared



e Commerce issues 

online marketing 


people are concerned that markets will violate privacy law by collecting peoples info with out them knowing 


cybersignitures -- congress passed Electronic Signitures in Global and National Commerce Act (e-sign), makes it easier for businesses to enter into contracts with people over internet 


Employment law issues:

employee privacy laws

online harrassment

vicarious liability

what is a "workplace"



courts want to define employees right to privacy and employers right to control what happens in workplace; monitoring (web site history, key stokes etc)


peer to peer harrassment: someone is looking at porn online and company doesnt say anything, could be harrasing other employees. 


defamation is the issuance of a lie about someone else which causes them to suffer.    ex. people put porn in planes, the pilot got fired because people were talking about how that pilot is gross and what not. 


hard to tell what a workplace is online. because a forum is monoritored by a company it counts as an extension to the workplace. 







insider trading

identity theft

internet gambling 


most common hacking tactic is denial of service attack -- hackers flood web site with a bunck of junk emails at one time, causes a overload, slows website and it crashes, leaking out peoples info


junk email


using inside info to purchase or sell stock. breaks fiduciary duty of loyalty. people will post online saying bad things to manipulate stock price 


taking someones identity, opening accounts and getting huge debt. FTC is responsible to help victums 


some states shut down all sites that do it. ifa state bans a company from doing it in the state they cant control if the server is out of their jurisdiction. 

chapter 7 

What is a crime?

an act that causes harm to the public health, saftey or morals. 
Felonies/ misdemeanors/petty crimes

crimes are based on seriousness of offense 

felonies-- huge crimes, murder, rape. punishible by death or prison

misdemeanors -- less serious, get fined or prison for under a year

petty crimes---- sub category of misdemeanors, can get fined or jail 6 months


The mens rea requirement

says the crime included a wrongful intent ( guilty mind ) 

Criminal procedure :



  1. warrant - officer has a arrest warrent given by magistrate ( low judicial official) 
  2. arrest - seizing and hold under authority of law, miranda rights given
  3. miranda warnings-- think of being arrested 
  4. first appearance -- go in front of magistrate, decides if probable cause for arrest 
  5. bail -- moneyto get out of being held 
  6. information-- written accusation in misdemeanor case
  7. grand jury-- group who says if there is evidence to try a defendent 
  8. indictment -- statement from prosecution & jury to efendent charging them
  9. pretrial diversion --attempt to divert vertain offenders from reg justice system and into a different program 
  10. arraignment - formal appearance in court, plead guilty or not
  11. plea bargaining - guilty,not,nolo cotendere - doesnt admit guilty but wants to contest charges. plea guilty and attorney bargins to get a lesser sentence 
  12. burdon of proof - provide evidence and persuation 
  13. right to jury trial
  14. speedy trial
  15. producing evidence - physical evidence and testimony proving all elements of crime
  16. 5th amendment - dont have to testify if you dont wanna 


entrapment -- idea for the crime was placed in head by officer or other gov official

insanity -- committed crime because mentlly unstable 

duress - someone forced me to do it. 

mistake of fact - a mistake by defendent vitiates criminal intent

white collar crime -crimes committed in a commercial context by members of the professional and managerial classes 

When is corporation criminally not liable?
when there is a crime only punishable by jail


Liability of top executives:

            Why aren’t they often found guilty, convicted, or subject to harsh punishments?




they delegate responsibility to other people who are "responsible" for the actions of the people within the corperation 


only way a corp can act is through people who act in its behalf -- dotterweich


corp execs can be found guilty of committing corp crimes - park 



Factors encouraging white collar crime




1.     Societal stress on material success, without equal emphasis on means of achieving success.

2.     Linkage of corporate rewards of salary and promotion to accomplishing short-term goals.

3.     Groupthink

4.     Ease of rationalizing illegal behavior.

5.     Dispersion of decision making.

6.     Retention of status by persons convicted of white-collar crime.

7.     The lack of an adversarial relationship between the corporation and government regulators.

8.     Poor personnel policies that leave employees feeling insecure, unappreciated, and underpaid.




Federal sentencing guidelines



1991 sentencing guidelines used to say what is a just punishment, adequate deterrence, incentives for companies that maintan internal things that prevent, detect and report criminal activities. 


fines a a mix of "base fine and culpability score" - 

base- greatest of the company gain, victms loss or dollar amount corresponding to offense level

culp -- multiplier that is applied to base fine, based on chart of possible factors 



Impact of Blakeley case


determined that under 6th amendment, juries determine facts that increase sentences beyond the guidline maxs. Federam sentencing guidelines because just guidelines not mandatory. 

alternative sentancing 



comm service

cnat work in certain places or jobs

house arrest of confinment

common white collar crimes

bribes - self explanitory 

regulation violations 

criminal fruad:

false entries, false token, forgery, mail fraud etc




Violations of Patriot Act


dramatically reduced restrictions on law enforcement agencies ability to search phone, email messages, medical financial and other records 
Ideas for preventing white collar crime

general public director: basically a legal advisor and very involved in companies actions

increase fines so they are actually deterrents

make regulations easier to understand and prosecute 




Specfic federal laws: RICO, False Claims Act, Sarbanes-Oxley, Whistleblower Protection



rico - prohibits people employed by or associated with an enterprise from engaging in racketeering (includes all white-colar crimes as well as acts of violence. 

false claims act - privite people may sue employers on behalf of gov for fruad against gov

sarbanes - set new rules reguarding corp accounting, gov oversight & financial regulations

whistle blower - intended to offer protection to those who act as whistle blowers. 

State laws

global efforts to control white collar crime:

increase in tech has made committing crimes internationally hella easy


counrties are workking together to crack down on international crime by letting each other see complaints about company 

chapter 10

definition of contract


legally enforceable exchange of promises or an exchange of a promise for an act 
Sources of contract law

case law: governs contracts dealing with real property, personal prop, services and employment contacts. 

Statutory law:the UCC: its purpose and its applyability.

governs contracts for sale of goods 

Classifications of contracts 

express: oral or written promises between people, enforcable by court of law

Implied: based off conduct of person rather a written or oral statement(( i go to fast food, i have implied contract that they will give me food for money)

unilateral / bi lateral: uni-exchange of promise for an act. bi - exchange of one promise for another

void- at its formation has illegal or serious defects. (fraud)

voidable - gives the parties option of withdrawing

valid- meets all legal requirements

executed -one that all terms were met and completed

executory - all terms havent been met (wont pay until house is painted ) 

quasi contracts- court imposed agreement that prevents unjust enrichment of one party when they didnt make an agreement. 

Ex: John is next door and see’s gardners begin to landscape his house. He knows he didn’t call for that service but he likes what they are doing so he lets them finish. They put a bill in his mailbox and he argues that he wont pay. The court orders John to pay, finding that he was unjustly enriched. 






elements of legal contract 



legal officer, legal acceptance, consideration, guinuen assent, competetent parties, legal object


Legal offer

must show objective intent to enter into the contract: ask if a resonable person who heard him talk would say he seriously wanted to make an offer

must be definite: must be some reference to subject matter, quantity of items, price of items

offer must be communicated to the party intended by the offerer

terminating the offer: "mailbox rule" 

  • failure to respond within a reasonable time will cause offer to lapse
  • death of either party
  • destruction of subject matter: neither persons fault but item gets broke and cant get new one 
  • person doesnt accept offer
  • person withdraws offer before i can accept it. 



Legal acceptance 



intent to accept must be shown

intent musy be said by proper means. accepting is binding 

intent must staisfy terms of offfer ( ill give you this for 100, no ill pay 150, not intent to accept, counteroffer)


a bargained for exchange of promises in which a legal detriment is suffered by the promisee. 

  • adequacy- if one person makes a bad deal with someone else, courts wont step in unless they can prove fraud or mistake 
  • preexisting duty rule - person only agrees to do what they are required, there is no detriment to person
  • promissory estoppel - courts hae enforced contracts when requirements of consideration were not met by using doctrine of promisory estoppel :
  • promise justifiably relied on by promisee 
  • substantial economic detriment to promisee 
unjust enrichment - benefit by mistake or luck. shouldnt keep it
liquadated - no dispute about amouunt of debt
unliquadated - when there is a dispute on amount owed

Genuine Assent

two parties legally enter a contract willingly and understand what it states

fraud: misrepresentation of material , intent to decieve someone, they rely on that misrep. and are injured

duress - any wrong act tjat stops someone from using free will while executing contract 

undue influence - one party uses mental mind fuck over someone

mistake - prevents genuine assent. both made an error, contract void

competent parties 

peopel understand nature of agreement and transaction. be competent

minors- under the age, contratcs are viodable by minor anytime before they become of age

insanity - courst says they are insane. doesnt work

intoxication - someone drunk enters into a contract, they can cancel it. 

legal object
subject matter of the agreement must be lawful
Statute of Frauds 

must be in writing:

contracts for sale of land

contracts to pay debt of another

contract not performable in one year

sale of goods over 500

contracts in consideration of marrage

contracts of an executor to answer for debts of deceased 

parole evidence rule 

§  When parties have executed a written agreement that is complete on its face, oral agreements made before or at the same time as the written agreement that vary, alter or contradict it are invalid

third party beneficiary contracts

donee-beneficiary contract

where parties intend to make a gift to the 3rd party

creditor beneficiaries

where intent is to fufill an obligaton. Ex: (Smith works for Jones in exchange for Jones’ promise to pay Taylor money that Smith owes).






present transfer of an existing right


certain classes of assigments are not viewed by law:

1. Assignments that materially change the duty of the obligor

2. Assignments forbidden by state statue

3. Any assignment forbidden by the original contract between the obligor-promisor and the obligee-promisee

4. Contracts for personal services (Ex: an artists contract to paint an individuals portrait). 

chapter 11 
Discharging a contract

parties discharge their contract by doing what was required by terms of agreement 

complete performance -compleation of all terms

substantial perf- completion of nearly all with honest effort to finish rest but couldnt

material breach - substantial breach that may be intential

sales of goods - seller ships nonconforming goods (UCC), rejects all goods, accepts all goods, accept some reject rest, tell seller they are fucked


discharging contract cont.

mutual agreement 


rescission: right to cancel a contract

accord and satisfaction : rescinding on an origional contract and sub a new one for it 

novation: replacing a contract 


Remedies for Breach of Contract 

legal remedies


when plaintiff requests monetary damages


damages: types

monetary damages: compensation, punitive,nominal liquadated damages

compensatory damages: moetary damages awarded for breech of contract that results in higher costs and lst profits for injured party 



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