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Business Law 210 > Exam 4 > Flashcards

Exam 4 Flashcards

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1
Q

What s a penal code?

A

a collection of criminal statutes

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2
Q

What are the three classifications of crimes?

A

Felony
Misdemeanor
Violation

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3
Q

What is a tort?

A

a civil wrong. the same action can give rise to both a civil lawsuit and a criminal lawsuit.

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4
Q

What are the three categories of torts?

A
  • Intentional torts
  • unintentional torts (negligence)
  • strict liability
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5
Q

What is an intentional tort?

A

a category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiffs injuries

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6
Q

What is battery?

A

unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury

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7
Q

What is assault?

A

the threat of immediate harm or offensive contact

-actual physical contact is unnecessary for an action to be an assault

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8
Q

What is false imprisonment?

A

the intentional confinement or restraint of another person without authority or justification and without that persons consent

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9
Q

What is merchant protection statutes?

A

statutes that allow merchants to stop, detain and investigate suspected shoplifters without being held liable for false imprisonment if:

  • reasonable grounds
  • detained for a reasonable time
  • investigation conducted in a reasonable manner
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10
Q

What is defamation and what are the two different kinds?

A

a false statement made by one person about another

  • Libel: a false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video and so on
  • Slander: oral defamation
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11
Q

What is the misappropriation of the right to publicity?

A

an attempt by another person to appropriate a living persons name or identity for commercial purposes

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12
Q

What is the invasion of the right to privacy?

A

the unwarranted and undesired publicity of a private fact about a person
-the fact does not have to be untrue

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13
Q

What is disparagement?

A

false statements about a competitors products, services, property, or business reputation

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14
Q

What is intentional misrepresentation (fraud)?

A

the intentional defrauding of a person out of money, property or something else of value

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15
Q

What are the four elements required to find fraud?

A

1) the wrongdoer made a false representation of material fact
2) the wrongdoer had knowledge that the representation was false and intended to deceive the innocent party
3) the innocent party justifiably relied on the misrepresentation
4) the innocent party was injured

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16
Q

What is negligence?

A

a doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions

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17
Q

What is duty of care?

A

the obligation people owe each other not to cause any unreasonable harm or risk of harm

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18
Q

What is actual cause (causation in fact)?

A

the actual cause of negligence

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19
Q

What is proximate cause (legal cause)?

A

the injury or damage must have been foreseeable

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20
Q

What is professional malpractice?

A

the liability of a professional who breaches his or her duty of ordinary care

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21
Q

What is negligent infliction of emotional distress?

A

a tort that permits a person to recover for emotional distress caused by the defendants negligent conduct

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22
Q

What is negligence per se?

A

a tort in which the violation of a statue or an ordinance constitutes the breach of the duty of care

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23
Q

What is res ipsa loquitur?

A

a tort in which the presumption of negligence arises because:

  • the defendant was in exclusive control of the situation
  • the plaintiff would not have suffered injury but for someones negligence
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24
Q

What is the good samaritan law?

A

a statue that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations

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25
Q

What is assumption of the risk?

A

a defense a defendant can use against a plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury

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26
Q

What is contributory negligence?

A

a doctrine that says a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant

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27
Q

What is comparative negligence (comparative fault)?

A

a doctrine under which damages are apportioned according to fault

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28
Q

What is strict liability?

A

liability without fault.

29
Q

What is product liability?

A

a tort doctrine that makes manufacturers, distributers, wholesalers, retailers, and others in the chain of distribution of a defective product liable or the damages caused by the defect, irrespective of fault

30
Q

What are punitive damages?

A

monetary damages that are awarded to punish a defendant who either intentionally or recklessly injured plaintiff

31
Q

What is failure to warn?

A

a defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown

32
Q

What are the defenses to product liability?

A
  • Generally known danger: manufacturers and sellers are not strictly liable for failing to warn of generally known dangers
  • Government contractor defense: defense and other contractorsare not usually liable if such a product causes injury
  • Abnormal misuse of product
  • Supervening event: a manufacturer or seller is not liable if a product is materially altered or modified after it leaves the sellers possession
  • Assumption of risk: defendant must prove that the plaintiff knew and appreciated the risk and voluntarily assumed the risk
  • Statute of Repose: a statute that limits a sellers liability to a certain number of years from the date when a product was first sold
33
Q

What are regulatory statues?

A

statutes such as environmental laws and securities laws that provide for criminal violations and penalties

34
Q

What does actus reus mean?

A

“guilty act”

the actual performance of a criminal act

35
Q

What does mens rea mean?

A

“evil intent”

the possession of the requisite state of mind to commit a prohibited act

36
Q

What are the three kinds of criminal intent?

A
  • Specific intent crime: a crime that requires that the perpetrator intended to achieve a specific result from his or her illegal act
  • General intent crime: a crime that requires that the perpetrator either knew or should have known that his or her actions would lead to harmful results
  • Non-intent crime: a crime that imposes criminal liability without a finding of mens rea (intent)
37
Q

What is order of criminal procedure?

A

arrest….indictment or information…arraignment…plea bargain…criminal trial

38
Q

What is indictment and what is information?

A

Indictment is the charge of having committed a crime based off the judgement of a GRAND JURY

Information is the charge of having committed a crime based on the judgement of a JUDGE

39
Q

What is nolo contendere?

A

the accused agrees to the imposition of a penalty but does not admit guilt

40
Q

What is forgery?

A

the fraudulent making or alternation of a written document that affects the legal liability of another person

41
Q

What is embezzlement?

A

the fraudulent conversion of property by a person to whom that property was entrusted

42
Q

What is extortion?

A

blackmail

43
Q

What does the 4th amendment protect you from?

A

to be free from unreasonable search and seizure by the government

44
Q

What does the 5th amendment protect you from in terms of court cases?

A

a person may not be required to be a witness against himself or herself in a criminal case

45
Q

What is double jeopardy clause?

A

a clause of the 5th amendment that protects persons from being tried twice for the same crime

46
Q

What does the 6th amendment give you the right to?

A

to be tried by an impartial jury of the state or district in which the alleged crime was committed

to cross examine the witnesses against the accused

to have the assistance of a lawyer

to have a speedy trial

47
Q

What is the 8th amendment?

A

protects criminal defendants against cruel and unusual punishment

48
Q

What is the wickard v filburn case about?

A

In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court drastically expanded the Commerce Clause to include agricultural activity limited to a single farm in Ohio.

49
Q

What is the palsgraf v long island case about?

A

Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform when two men ran to catch a train. The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train. The man dropped the package which exploded when it hit the tracks. The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring Palsgraf. Palsgraf brought a personal injury lawsuit against Long Island Railroad and the railroad appealed the court’s judgment in favor of Palsgraf. The judgment was affirmed on appeal and Long Island Railroad appealed.

50
Q

What are the three branches of government and what do they do?

A

Legislative branch: makes the law
Executive branch: enforces the law
Judicial branch: interprets the law

51
Q

What are the reserved federal powers?

A

The ability to coin money, regulate international as well as interstate trade, make treaties, declare war, and establish post offices.

52
Q

What are reserved state powers?

A

Establish local governments, conduct elections, and police power which is the authority to make laws concerning the health safety and welfare of its residents

53
Q

What are the concurrent powers of the federal and state government?

A

Tax, borrow money, establish courts, and regulate banks. States may regulate in areas which are already subject to federal regulation as long as the state’s laws do not conflict with the federal laws already in place.

54
Q

What does the supremacy clause state?

A

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

55
Q

What is the full faith and credit clause?

A

Each state must recognize the laws and court judgments of the other states. The Supreme Court has permitted states to refuse to enforce another state’s statute if doing so is against their public policy.

56
Q

What is the first amendment?

A

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

57
Q

What is the second amendment?

A

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

58
Q

What is the third amendment?

A

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

59
Q

What is the fourth amendment?

A

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

60
Q

What is the fifth amendment?

A

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without Due Process of law; nor shall private property be taken for public use, without just compensation.

61
Q

What is the sixth amendment?

A

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

62
Q

What is the seventh amendment?

A

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

63
Q

What is the eighth amendment?

A

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

64
Q

What is the ninth amendment?

A

The purpose of the Ninth Amendment is to make clear that the federal government cannot claim rights not given to it in the body of the Constitution.

65
Q

What is the tenth amendment?

A

The Tenth Amendment makes clear that any power that was not specifically given to the federal legislature in Article I, Section 8 on the Constitution, and which was not prohibited to the States, was a power reserved to the states or the people as appropriate (Reservation Clause).

66
Q

What is the commerce clause?

A

Commerce Clause states that Congress has the right to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes

67
Q

What is procedural due process?

A

Procedural Due Process is the concept that the court system should be fair.

68
Q

What is substantive due process?

A

Substantive Due Process is the idea that laws should be fair.

69
Q

What is the fourteenth amendment?

A

if a law affects the fundamental rights of individuals that are similarly situated in different manners, that law would fall under strict scrutiny.

Business Law 210 (4 decks)

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