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Business Law > Criminal Law, Tort Law, and Agencies > Flashcards

Criminal Law, Tort Law, and Agencies Flashcards

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1
Q

How can you successfully appeal the decision of an administrative agency?

A
  1. Fraud
  2. Bad Faith
  3. Abusive
  4. Intentional Wrongdoing
  5. No substantial Evidence
  6. Arbitrary or Capricious
  7. Malice, bribery, or prejudice
  8. Unreasonable (Rarely Successful)
  9. Unconstitutionality (Your only real chance at appeal)
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2
Q

What is required for most crimes?

A

Act (actus reus)

&

Intent (Mens Rea)

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3
Q

Types of Intent

A
  1. Specific Intent (You need to have intended the result): (arson)
  2. General Intent (Intended the act): (assault)
  3. Gross Negligence: (voluntary manslaughter)
  4. Ordinary Negligence: Negligent Homicide
  5. No Intent: (nuisance, most traffic violations, most drug offenses)
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4
Q

Homicide

A

The killing of a living human being within one year and one day.

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5
Q

When is homicide justifiable?

A

In the performance of a legal duty.

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6
Q

When is homicide excusable?

A

a) By accident
b) Self-Defense
c) Killer lacks legal capacity (insanity defense)

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7
Q

What are the four tests for insanity?

A
  1. McNaughton Test (right and wrong test
  2. Irresistible Impulse Test
  3. Durham Test
  4. Model Penal Code Test
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8
Q

When is homicide murder?

A

a) Intent to kill or cause great bodily harm
b) willful act tending to cause great bodily harm
c) during a felony

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9
Q

When is homicide manslaughter?

A

Without malice or forethought:

a) Voluntary Manslaughter: Intent, but under sudden adequate provocation.
b) Involuntary Manslaughter: Gross Negligence

C) Involuntary Homicide: Not a felony. It’s a first degree misdemeanor.

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10
Q

How does a judge issue multiple sentences for the same person?

A

Sentences can either be concurrent or consecutive.

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11
Q

When is a criminal eligible for parole?

A

At 3/4 of the minimum sentence.

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12
Q

What kinds of torts are there?

A
  1. Intentional Torts (fault)
  2. Negligence (fault)
  3. Strict Liability Torts (no fault)
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13
Q

What are the crimes and torts that have the same name?

A

Assault, battery, trespass, and nuisance

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14
Q

What kinds of intentional torts are there?

A
  1. To the person: assault, battery, and false imprisonment

2. Property: conversion trespass to personal property, trespass to land, and waste

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15
Q

Assault

A

Intentionally placing someone in fear or apprehension of immediate physical harm or injury.

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16
Q

Battery

A

Intentional touching that results in injury.

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17
Q

False Imprisonment

A

Intentionally detaining someone against their will.

18
Q

Trespass to Land

A

An unpermitted intrusion onto someone’s land.

(requires a voluntary act, not intent)

Defense: Easment: Right of Way

19
Q

Conversion

A

Intentionally depriving someone of their personal property.

20
Q

What types of property are there?

A

Real Property: land, buildings, and fixtures

Personal Property: Tangible & Intangible

21
Q

Fixture

A

Something that was originally personal property (movable) that has now become an integral part of the estate.

22
Q

Larceny

A

Taking and carrying away of the personal property of another with the intent to steel it.

23
Q

What is a BFP?

A

Bonafide Purchaser

  1. Gives value
  2. in good faith: honestly
  3. without notice
24
Q

What types of civil cases are there?

A

Legal:
Remedy = Damages
Requires a preponderance of the evidence to win.

Equity:
Remedy = extraordinary remedies (such as an injunction or mandamus.

25
Q

Injunction

A

A court mandate to stop.

Types:

  • permanent
  • temporary
  • TRO
  • CPO
26
Q

Mandamus

A
  • A court mandate to do something.
  • no jury (judge)
  • clear and convincing evidence (75%)
27
Q

Trespass t personal property:

A

An unpermitted intrusion to someone’s personal property.

28
Q

Waste

A

Intentionally injuring someone’s future interest in property.

29
Q

Life Estate

A

Reverse Mortgage (The property goes to the “remainder man”)

30
Q

Intentional Torts

A
  1. To the Person
  2. To Property
  3. To Economic Relations
  4. Others
31
Q

Intentional tort to economic relations

A
  1. Disparagement: Discrediting the quality or title
  2. Unfair Competition: Stealing trade secrets etc.
  3. Interference: Sabotage
32
Q

Other Torts (no intent required)

A
  1. Intentional, reckless, or negligent infliction of neutral or emotional distress.
  2. Fraud: a) misrepresentation b) of a material fact C) Knowledge or reckless indifference to the truth D) Intent to Deceive E) Reliance F) Injury
  3. Invasion of Privacy
  4. Abuse of Process: malicious misuse of the civil process
  5. Malicious Prosecution: malicious misuse of criminal justice
33
Q

Defense to Intentional Torts

A
  1. lack of intent
  2. Consent: a) express (oral/written) b) implied based on conduct
  3. Privilege: Such as a police officer using a reasonable amount of force.
34
Q

What are Negligence Torts?

A
  • Always unintentional
  • They require:
    1. Duty of Care
    2. Breach of that duty
    3. Proximate Cause
    4. Substantial Injury
35
Q

What is the test of proximate (close) cause?

A

Foreseeability

36
Q

Joint Tort Feasors

A

Joint tort feasors are jointly and severally liable (It must be determined what proportion feasor is responsible for)

37
Q

Feasor

A

One that commits or is guilty of a tort.

38
Q

Right of Contribution

A

The right of one joint feasor to collect from another joint feasor after a judgement has been made.

39
Q

What are the Defenses to Negligence?

A
  1. Contributory Negligence:
    - When the plaintiff was also negligent
    - Plaintiff gets nothing
  2. Comparative Negligence:
    - This weighs the fault of each party and awards money based on the percentage of fault
    - most states have a “50% comparative negligence” statute
  3. Assumption of the Risk:
    - “Plaintiff knew of the specific danger”
  4. Unavoidable Accident
  5. Doctrine of Last Clear Chance:
    - Only applies to contributory negligence
    - It is a defense to the contributory negligence defense
40
Q

What is a “Res Ipsa Loquitur” case?

What about a “Per Se” Case?

A
  • Res Ipsa Loquitur = The thing speaks for itself
  • This puts the burden on the defendant to prove that they were not negligent.
  • In a “Per Se” case”, the negligence of the defendant is even more obvious.

Business Law (6 decks)

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