on your blue computer graded bubble sheet in the appropriate location.

Transcription

1 as your signature PRINT your name EXAM #1 Business Law Fundamentals LAWS 3930 sections -001, -002 and -003 Chapters 1-4, 24, 6, 7, and 9 INSTRUCTIONS: 1. Affix your printed name as your signature in the space provided above. 2. This is a closed book exam. It is an objective test of your subjective knowledge. group work is academic dishonesty and earns the student a course letter grade of "F". You may make up your white copy of the exam as much as you wish. RECALL: To calculate your grade with the answer key you need to mark your answers on your white copy of your exam. 3. The time for this exam is limited to the duration of a twice-a-week day class meeting time (i.e., 75 minutes [e.g., day exam starts at 10:30am and ends at 11:45am]). Time is forecasted as not being a constraint for any student. 4. Both print your last name and bubble in your last name on your blue computer graded bubble sheet in the appropriated location. 5. Both print your NU ID number and bubble in your NU ID number on your blue computer graded bubble sheet in the appropriate location. 6. This is a True-False exam. Use A for True. 7. Read carefully. Think. Read closely. Think. Recall, this is an objective test of your subjective knowledge. 8. Recall the material difference between i.e. (that is) versus e.g. (for example). 9. This is not a trivia test. Accordingly, never is a question false because of a number in the question. For example, if a question describes Amd. X, then the number is accurate (e.g., the question is not about Amd. IX). The question might be false for a reason other than the number. Similarly, the Latin is not the source of falsity. Both numbers and Latin are included solely to aid the student's recall. 10. Students taking their Exam #1 on Tuesday at 6:00pm shall turn in both [1] white copy of exam; and [2] completed blue answer sheet. Students taking their Exam #1 on Wednesday at 6:00pm shall turn in both [1] white copy of exam; and [2] completed blue answer sheet. Students taking their Exam #1 in the Thursday 10:30am class shall exchange their blue answer sheet for an answer key and retain their white copy of the exam. Tuesday and Wednesday evening students may, starting after 11:30pm Thursday, retrieve their white copy exam and an answer key from Professor O'Hara's suite secretary in MH This Exam #1's default worth is 300 points of a course total of 1,000 points. There are 52 questions graded as if there only are 50. Accordingly, each correct answer on Exam #1 is worth 6.0 course points. 12. WARNING: A student earns NEGATIVE TEN COURSE POINTS for each failure to comply with Instruction #1, Instruction #4, and/or Instruction #5. WARNING: Exam score of zero if fail to answer correctly question #52. See NOTE E on page 2 of 6.

2 NOTES: A. Recall the material difference between i.e. (that is) versus e.g. (for example). B. Use bubble A for TRUE and use bubble B for FALSE. C. For clarity in distinguishing a "principal" from a principal as well as distinguishing an "agent" from an agent, quote marks will be used for the generic words "principal" and "agent" and no quote marks will be used for the specific words principal and agent. That is, "principal" and "agent" refer to all three relationships (i.e., principal and agent; and principal and independent contractor; and employer and employee). Similarly, quote marks are used to distinguish a transaction that fails to achieve lawful contract status thus is a mere "contract" and a force that does not achieve unlawful duress status thus is mere "duress". D. The quote marks described in NOTE C. might be the very essence of the question's truth or falsity. For example, it is true to say "An employee is one of the three relationships in "agent"."; and it is false to say "An employee is an agent.". E. Different students have different versions of this Exam #1. For a student's blue bubble sheet to be correctly scored requires that student to record that student's version of this Exam #1. AT THE BOTTOM RIGHT OF THIS PAGE, WHAT LETTER FOLLOWS THE YEAR 2018? RECORD THAT LETTER AS YOUR ANSWER TO graded QUESTION 52. Failure to correctly record your version shall earn you a score of zero on Exam #1. F. All appeals of this exam s questions must be: [F1] typed; [F2] signed by the student in three ways, typed name, handwritten signature, and typed university identification number; [F3] immediately following the [F2] signature, list in sequence, solely by number, each of the questions being appealed; [F4] since this exam's design (i.e., 52 questions graded as 50) presumes two professor errors, harmless error exists with two flawed question; thus, an appeal must appeal three or more questions and must prove at least three questions to be objectively ambiguous for there to be one non-harmless error; [F5] after the [F3] list, argue each question, one at a time; [F6] at the beginning of each question s [F5] appeal, identify at least two reasonable meanings that the question could have had; [F7] in each [F5] appeal, argue why one or more of the [F6] identified reasonable meanings is as appropriate or is more appropriate than the meaning used for the answer key answer; and [F8] the signed appeal must be personally handed to the instructor (or to the instructor's suite secretary in MH 228) no later than the first 15 minutes of your class section's first class meeting following make up Exam #1 time: time is of the essence.

3 QUESTIONS: (Recall page 2's Notes C and D.) 1. T F USA law favors assigning legal liability to those persons whose actions are knowing or voluntary. Knowing comes in three forms. Actual knowledge (a.k.a., scienter) which is subjective. Receipt of notice which is an objective communication that if received by the Reasonable Person would have resulted in actual knowledge. Reason to know is the objective implied knowledge that experiences by the Reasonable Person would have resulted in actual knowledge. 2. T F USA law favors assigning liability based upon the subjective rather than the objective. The subjective is what a natural person personally experiences. The objective is what the Reasonable Person would perceive. The objective comes in two forms. Express is written words. Implied is in acts, words, and/or circumstances. 3. T F The most important person is a natural person (i.e., human). The least important person is a mere legal person (e.g., corporation). Only natural persons may be either a citizen or a consumer. 4. T F Most frequently USA law imposes legal liability when an actor's behavior is less than the behavior of the Reasonable Person. 5. T F Capacity focuses upon actual knowledge that the Reasonable Person would have. 6. T F Laches is tolled until the statute of limitations. 7. T F Central to the organization of USA law is the separation of powers. Nebraska's Constitution has an express separation of powers while the USA Constitution has an implied separation of powers. The separation of powers comes in three main forms. [I] Person v. government [ii] federal v. State [iii] legislative v. executive v. judicial. Due to the separation of powers, only the legislature has the power to create a crime. 8. T F Judicial review is the express power of the judiciary to interpret the Constitution and to declare unconstitutional any act of any USA government. 9. T F Every USA government always owes all person's due process of law. Due process of law comes in two forms: substantive due process and procedural due process. Procedural due process is notice and hearing, both proportional to the interests involved.

4 10. T F Common law fraud exists if the defendant knowingly and intentionally misrepresents a fact thereby inducing the plaintiff's justifiable reliance and actually causing the plaintiff's damages. 11. T F The Absorption Doctrine is a judicial interpretation of Amendment Fourteen's due process clause as binding the USA States to honor the fundamental rights of the Bill of Rights. 12. T F A case of first impression creates precedence. Precedence is binding. 13. T F The plaintiff must have standing to sue (i.e., injury in fact and within the zone of protected interests). Privity exists between those parties with legally recognized direct relationships (e.g., reasonably foreseeable in tort) 14. T F A Motion to Dismiss by assumption and a Summary Judgment by agreement remove all material questions of fact leaving only questions of law. 15. T F An appellate court will affirm the trial court unless the appellate court finds trial court made a material error. The material errors that a trial court might make are: [i] a clear error of fact; [ii] a NON-harmless error of procedure, or [iii] any error of law. 16. T F Preemption is not favored, but may be allowed if: [i] clear intent of Congress and national interests outweigh State interests; or [ii] express intent of Congress and a need for uniformity. 17. T F Police Power is the power of each USA State government to regulate for The People's health, safety, morals, and general welfare. 18. T F A government may not do indirectly that which it is expressly prohibited from doing directly; and the specific controls the general. 19. T F Because of Amendment IX and Amendment X, it is judicial activism if any USA court limits a natural person's rights solely to the express rights in the Bill of Rights.

5 20. T F Government may take any private property if government takes that private property with due process of law; for a public use; and pays just compensation. Mere regulation is not a taking. 21. T F The Commerce Clause contains an ambiguity that the judiciary must interpret. In the English language (both in 1789 and in 2017), the word among has a narrow meaning (i.e., between) and has a broad meaning (i.e., within). 22. T F The Law reaches binary conclusions (e.g., win v. lose). The Law reaches those binary conclusions by way of triad analysis (i.e., core, penumbras, and emanations). 23. T F Comity is an implied international tradition. But, domestically comity is an express constitutional duty and right of each USA State per Article IV, section 1 (i.e., Full Faith and Credit clause). 24. T F Any USA government always may regulate all free speech reasonably with respect to the time, place, and manner of that speech. 25. T F Commercial free speech is an implied fundamental constitutional right that is focused on the rights of the speaker and as a matter of law there is objective truth in commercial speech. 26. T F The Fourth Amendment requires a USA government to provide probable cause to the judiciary as a condition precedent to obtaining a warrant if a search or seizure is Unreasonable. 27. T F The Fifth Amendment imposes many express limitations on governmental action including but not limited to no double jeopardy, no torture in criminal cases no self-incrimination, grand jury needed for federal felonies, and due process of law to deny a person's life, liberty, or property. 28. T F The Ninth Amendment expressly recognizes that the People have implied constitutional rights (i.e., enumeration does not disparage).

6 29. T F The Tenth Amendment expressly limits the USA federal government to solely of granted powers and expressly makes the USA State governments of all but denied powers (i.e., powers not delegate nor denied are reserved). 30. T F The Absorption Doctrine is a judicial interpretation of Amendment Fourteen's due process clause as binding the USA States to honor the fundamental rights of the Bill of Rights. 31. T F The core of a USA State's legislative power is judged by the Rational Basis Test. A State's legislative action is presumed valid under the Rational Basis Test. If the State enacts social or economic regulation, then the State only needs a rational relationship between the State's legitimate governmental interest (e.g., Police power) and that social or economic regulation. 32. T F An Act of State is an action by a government as a government. 33. T F All governments have sovereign immunity for all acts by that government within its own jurisdiction: unless that government waived or surrendered sovereign immunity. 34. T F Amendment XI reserves to each USA State's sovereign immunity in the federal courts. 35. T F Torts either are intentional torts; negligence torts; or strict liability torts. 36. T F All torts have the same elements: defendant owes a duty of care to the plaintiff; defendant breaches that duty of care; defendant's breach is the proximate cause of the plaintiff's injury; defendant is obligated to pay the plaintiff damages; and defendant has no defenses. 37. T F Actual cause is the chain of events from first cause to plaintiff's injury. Proximate cause truncates the defendant's legal liability to a fraction of actual cause. Proximate cause exists if the plaintiff's injury would have been reasonably foreseeable to the Reasonable Person in the position of the defendant. 38. T F Assumption of the Risk exists if the plaintiff either knowing or voluntarily exposes the plaintiff to the harm or to the risk of harm created by the defendant. 39. T F The most frequently used burden of proof is the civil burden of clear and convincing evidence.

7 40. T F In common law contexts something is material if it is big enough to change the Reasonable Person's mind. 41. T F The Law defines rights (i.e., private property, torts, contracts, and crimes) and sets transaction costs (e.g., strict liability; burdens of proof). 42. T F A security is an investment of money in a common enterprise with a reasonable expectation of profit; that profit derived from the undeniably significant efforts of others. 43. T F Libel per se presumes damages, and thus avoids the Motion to Dismiss. Liber per se exists if the defendant defames the plaintiff as to a felony; unprofessional conduct; communicable disease; and/or unchaste. 44. T F Damages are legally recognized pecuniary loss. In tort, compensatory damages are to make the party whole. Since the specific controls the general, contract compensatory damages are to cover the loss of the benefit of the bargain. 45. T F Nominal damages (e.g., $1) are the pecuniary minimum for each right infringed. 46. T F Punitive damages are calibrated by: degree of reprehensibility of the defendant's conduct; reasonable ratio between punitive and compensatory damages (i.e., maximum ratio of 10:1 [i.e., substantive due process]); and proportional to legislatively specified fines for similar behavior. 47. T F Different areas of law require different amounts of capacity: crime > contract > tort > wills. 48. T F All crimes have the same elements: actus rea (i.e., bad deed); mens rea (i.e., bad thought); and no defenses. 49. T F Because of substantive due process of the separation of powers (i.e., Person v. govt), criminal laws are void for vagueness if the Reasonable Person upon reading the criminal statute cannot be reasonably certain as which deeds are bad deeds.

8 50. T F The Law recognizes three types of relationships between a "principal" and its "agent". Each of the three "P" & "A" relationships vary by who has control (i.e., of what and of how), and thus who has liability. The person who is to have liability must have capacity. 51. T F In the EU statutes routinely provide that a person must opt-in to surrender privacy. In the USA statutes routinely provide that a person must opt-out to claim privacy. 52. E Answer question #52 E (a.k.a., make up exam) or earn a zero on Exam #1.