Mid-Term Flashcards
1
Q
Stare decisis
A
let the decision stand
2
Q
Mens rea
A
criminal state of mind
intentional (knowing), reckless, negligent
3
Q
Voir Dire
A
literally “speak the truth”
The term used to describe the process of questioning potential jurors (French term)
4
Q
Tort
A
a private wrong (French word)
5
Q
Rule of Law
A
government of laws, not individuals
6
Q
Key Elements of Rule of Law
A
- All persons, including the government, are accountable under the law;
- Fair, publicized, broadly understood and stable laws;
- A fair, robust, and accessible legal process in which rights and responsibilities are evenly enforced;
- Diverse, competent, and independent lawyers and judges
7
Q
How is The Rule of Law Maintained
A
Elections, Checks and Balances, Civil Disobedience
8
Q
Common Law System
A
origins in England; found largely in English speaking countries; great reliance on past cases (precedent); juries decide facts and judges apply the law
9
Q
Civil or Code-Based System
A
origins in Roman law; prevalent on European continent and most non-English speaking countries; reliance on very comprehensive codes; fewer juries; judges often find the facts and then apply the code; little concern about precedent of past cases
10
Q
Let the Decision Stand – Stare Decisis
A
Follow precedent; US courts follow cases already decided, especially when the cases are from higher courts
11
Q
Sources of the Law
A
State and federal constitutions; treaties; state and federal statutes and regulations; local ordinances; regulations at all levels; consent decrees; presidential executive orders; etc.
12
Q
Administrative Law
A
Executive agencies contrasted with independent agencies
Formal rule making contrasted with informal rulemaking
Interpretive Rules contrasted with legislative rules
Delegation of authority by the Legislature
13
Q
Criminal Law
A
Society is wronged
People v. defendant
Defendant is prosecuted
Prosecutor v defense lawyer
Right to counsel
Information or indictment
Government discloses
12 jurors for felony
Unanimous verdict required
Beyond a reasonable doubt
Guilty or not guilty
14
Q
Civil Law
A
Usually a person is wronged
Plaintiff v. defendant
Defendant is sued
Two attorneys
Lawyers are paid by parties
Summons and complaint
Both sides take discovery
6 jurors
Can be less than unanimous
Preponderance of evidence
Liable or not liable
15
Q
Federal court system
A
District Court (trial court for many business cases)
Court of Appeals (Second Circuit in NYC)
US Supreme Court
16
Q
Jurisdiction
A
the power of a court to hear a particular case
17
Q
Three key levels in NY State Court system
A
NY State Supreme Court (trial court for many business cases)
Appellate Division (Fourth Department in Rochester)
NY Court of Appeals
18
Q
What court can you ask to hear an appeal from the NYS Court of Appeals?
A
US Supreme Court
19
Q
Main State Courts
A
NYS Supreme Courts
Appellate Division
NYS Court of Appeals
20
Q
Main Fed Courts
A
US District Courts
Circuit Courts of Appeal
US Supreme Court
21
Q
Negating intent
A
Duress, entrapment, mistake
22
Q
Strict liability crimes
A
bigamy, statutory rape, safety, felony murder
23
Q
Levels of offenses
A
violation, misdemeanor, felony
24
Q
Constitutional Limitations
A
Search & Seizure
Exclusionary Rule
Self-Incrimination
Double Jeopardy
25
Commercial Bribery
payment to individual, not her employer, for an advantage
26
U.S. Foreign Corrupt Practices Act
Outlaws payment to foreign officials to secure business
Broad definition of government official
Exception for facilitating payments
Impact on non-U.S. companies
27
False Claims Act
overcharging the government for goods or services, including selling inferior quality goods instead of what has been ordered
28
Personal jurisdiction
the legal authority to require the defendant to stand trial, pay judgments, and the like
(When plaintiffs file lawsuits, defendants sometimes make a special appearance to challenge a court’s personal jurisdiction. If the court agrees with the defendant’s argument, the lawsuit will be dismissed.)
29
Subject matter jurisdiction
a court has the authority to hear a particular type of case
diversity and federal question subject matter jurisdiction in federal courts
30
Summons
served on a defendant, summons is the court’s written notice that a lawsuit has been filed against the defendant, the summons must be delivered to the defendant when she is physically within the state in which the lawsuit is filed
31
Interrogatories
These are written questions that the opposing party must answer, in writing, under oath.
32
Depositions
These provide a chance for one party’s lawyer to question the other party, or a potential witness, under oath. The person being questioned is the deponent. Lawyers for both parties are present.
33
Production (of documents and materials)
Each side may ask the other side to produce relevant documents for inspection and copying; to produce physical objects, such as part of a car alleged to be defective; and for permission to enter on land to make an inspection, for example, at the scene of an accident.
34
Complaint
A short, plain statement of the facts she is alleging and the legal claims she is making. The purpose of the complaint is to inform the defendant of the general nature of the claims and the need to come into court and protect his interests.
35
Class actions
If the court granted her request, she would represent the entire group of plaintiffs, including those who are unaware of the lawsuit or even unaware they were harmed. Class actions can give the plaintiffs much greater leverage because the defendant’s potential liability is vastly increased.
36
Small claims court
has jurisdiction only over civil lawsuits involving a maximum of, say, $5,000 (the amount varies from state to state)
Money damages only
Only individuals can start a suit there
Corporations and partnerships can be sued there
Can’t sue to get property back
Low filing fees
Relaxed rules of evidence, informal procedure
Attorneys unnecessary, even for corporations and partnership
37
Discovery objective
lawyers know in advance the answers to practically all questions asked because discovery has allowed them to see the opponent’s documents and question its witnesses
The theory behind civil litigation is that the best outcome is a negotiated settlement and that parties will move toward agreement if they understand the opponent’s case. That is likeliest to occur if both sides have an opportunity to examine most of the evidence the other side will bring to trial.
38
The highest court in the New York State court system is the
The New York State Court of Appeals
39
What are examples of sources of the law
The United States Constitution and State Constitution
Statutes drafted by Legislatures
Common law, which is the body of decisional law decided by judge
40
A key principle of the common law is
Heavy reliance on the precedent of other cases
41
If a party is sued and loses a civil suit he has been
Found liable
42
Assume that in 1900 the Minnesota Supreme Court ruled that a minor (someone under the age of 18) could declare a contract she signed to be invalid at any time during her minority, and in 2022, the courts in Minnesota still follow this ruling. This is an example of
Stare decisis
43
The Environmental Protection Agency is considered what type of agency
Executive
44
When a jury verdict or a decision of a trial court is appealed, the appellate court hearing the appeal can
Reverse the lower court ruling
Affirm the lower court ruling
Modify the lower court ruling
45
The requirement that a party sued in a court have sufficient contacts with place where the case is being heard is referred to as
Personal jurisdiction
46
The rule of law means
A government of laws, not individuals
47
If a party deliberately fails to perform a contract, their deliberate failure to do so constitutes a crime (when) ?
Never
48
The requirement that someone wishing to bring a lawsuit must have something at stake in the outcome is known as
Standing
49
Which of the following are characteristics of a criminal case in New York, but not of a civil case?
Defendants are entitled to free legal representation if they cannot afford to pay for it
50
Which statement best summarizes natural law?
An unjust law is no law at all
51
Immanuel Kant's categorical imperative says an act is ethical only if it would be acceptable for everyone to do the same thing. This is an example of
Deontological ethics
52
If the President vetoes a bill passed by Congress, in order to override that veto, the following must happen:
Both the House and Senate must repass the bill by a two-thirds margin
53
True or False?
The Rule of Law can be preserved by elections, check and balances within the Government, and peaceful civil disobedience
true
54
If Jamal loses a case in the NYS Supreme Court and wants to appeal, he should take the case to
The Appellate Division
55
True or False?
If Mitch is suing Gordon in a negligence case Mitch will be represented by the local prosecutors office and Gordon can get a court-appointed lawyer if he cannot afford to pay for one
false
56
What constitutional rights are found in the First Amendment to the U.S. Constitution
The requirement that there be a separation between church and state
The right to freely exercise ones religion
The right to petition the government for the redress of grievances
57
True or False?
The United States Supreme Court has the power to declare a statue or a government action unconstitutional and void
True
58
In which form of alternative dispute resolution is an award imposed upon the parties
arbitration
59
Generally, the burden of proof in a criminal trial is
Beyond a reasonable doubt
60
True or False?
A criminal defendant can waive his or her right to a jury trial and instead opt for a bench trial (a trial by the Judge)
true
61
Usually, a warrant is required before law enforcement can search a person's car or home.
Under which of the following circumstances can a search be conducted without a warrant?
Plain view
Stop and frisk
As part of a lawful arrest
62
What are the exceptions to the requirement the evidence seized illegally must be excluded?
Inevitable discovery
Good faith exception
Independent source
63
Miranda warning are designed to provide suspects with information about their rights under
The fifth amendment to the U.S Constitution
64
True or False?
Only a government can prosecute a crime.
True
65
When a defendant is convicted of a felony and appeals the guilty verdict, the appellate court hearing the appeal can
Reverse the trial court verdict and acquit the defendant
Affirm the trial court verdict
Reverse the trial court verdict and order a new trial
66
An indictment, which is the accusatory instrument that initiates a felony prosecution, is issued by
A grand jury
67
A misdemeanor is distinguished from a felony by
The seriousness of the crime charged and the length of the potential sentence
68
If a litigant loses a case in federal court and his or her appeal is rejected by the United States Court of Appeals, what must the litigant do to be heard by the United States Supreme Court?
File a petition for a writ of certiorari
69
If a defendant in a civil action files an answer, and the answer contains affirmative requests for relief against the plaintiff; that request is called
A counterclaim
70
During the jury selection process, the lawyers can reject a potential juror without giving a reason. That type of rejection of a juror is called
Premptory challenge
71
True or False?
When law enforcement induces the defendant to break the law, the prosecutor must prove that the defendant was predisposed to commit the crime.
true
72
Under most circumstance, a defendant may only be tried once for the same crime. What is the term used to describe instances where the prosecution attempts to try a defendant more than once for the same crime or offense?
Double jeopardy
73
What percentage of civil cases settle before a verdict or judgement?
More than 90%
74
In federal court, to establish diversity jurisdiction, the party suing there must show (1) that the plaintiff and the defendant are citizens of different states and (2) that the amount in dispute exceeds...
$75,000.00
75
To prove a violation of the federal RICO (Racketeering Influenced Corrupt Organizations Act), the government must prove (1) that the defendant committed two or more "racketeering acts" and (2) that these acts were committed in furtherance of certain specified goals. If convicted, the defendant can be:
Be sent to jail
Be subject to the forfeiture of his or her property if used in connection with the crime
Be subject to civil lawsuits and claims for money damages
76
Typical sequence of discovery
1. interrogatories
2. depositions
3. production of documents and materials
4. physical and mental examination
77
Records examples
agency policies, environmental hazards, consumer product safety, taxes and spending, purchasing decisions, and agency forays into foreign affairs
(if a claim is possible, you must retain them)
78
The federal system
means that law comes from a national government in Washington, D.C., and from 50 state governments
79
Legal history
The history of law foreshadows many current legal issues, including mediation, partnership liability, the jury system, the role of witnesses, the special value placed on land, and the idea of precedent
80
Primary sources of law
United States Constitution and state constitutions;
Statutes, which are drafted by legislatures;
Common law, which is the body of cases decided by judges as they follow earlier cases, known as precedent;
Court orders, which place obligations on specific people or companies;
Administrative law, which are the rules and decisions made by federal and state administrative agencies; and
Treaties and agreements between the United States and foreign nations.
81
Criminal law vs civil law
Criminal law concerns behavior so threatening to society that it is outlawed altogether. Civil law deals with duties and disputes between parties, not with outlawed behavior.
82
Jurisprudence
concerned with the basic nature of law, 3 theories of jurisprudence are:
Legal positivism: The law is what the sovereign says it is.
Natural law: An unjust law is no law at all.
Legal realism: Who enforces the law is more important than what the law says.
83
The doctrine of precedent
developed gradually over centuries, requires that judges decide current cases based on previous rulings
84
Legal positivism
The law is what the sovereign says it is
85
Legal realism
Who enforces the law is more important than what the law says
86
Plaintiff
the person who is suing
87
Defendant
the person who is being sued
88
Ethics
how people should behave
89
Ethics decision
Any choice about how a person should behave that is based on a sense of right and wrong
90
Life principles
These principles are the rules by which you live your life
91
Nobel Prize–winning economist Milton Friedman (1912–2006) famously argued that
a corporate manager’s primary responsibility is to the owners of the organization, that is, to shareholders
(Others have argued that corporations should instead consider all company stakeholders, not just shareholders)
92
Studies revealed that the secret to long-term happiness is
having good relationships with a spouse, family, and friends
It is difficult to maintain good relationships while behaving unethically
93
A company with a good reputation can
pay employees less and charge consumers more
conversely, unethical behavior causes financial harm
94
To Mill, who wrote utilitarianism, a correct decision is
one that maximizes overall happiness and minimizes overall pain, thereby producing the greatest net benefit
Critics of utilitarianism argue that it is very difficult to measure utility accurately
95
Deontological ethics
comes from the Greek word for obligation
Proponents of deontological ethics believe that utilitarians have it all wrong and that the results of a decision are not as important as the reason for making it
Kant also believed that human beings possess a unique dignity, and it is wrong to treat them as commodities
The problem with Kant’s theory is that the ends do matter
96
John Rawls principles
circumstances born as are life prospects
veil of ignorance
difference principle
In thinking about ethics decisions, it is worth remembering that many of us have been winners in life’s lottery and that the unlucky also deserve opportunities
97
Moral universalism
A belief that some acts are always right or always wrong
98
Moral relativism
A belief that a decision may be right even if it is not in keeping with one’s own ethics standards
cultural and individual
99
Can we be objective about ourselves?
No - People are not objective when comparing themselves to others
100
Moral licensing
After doing something ethical, many people then have a tendency to act unethically
101
Optimism bias
A belief that the outcome of an event will be more positive than the evidence warrants
102
Three practices that will help us avoid these traps
slow down
do not trust your first instinct
remember your life principles
103
Corporate social responsibility (CSR)
An organization’s obligation to contribute positively to the world around it
104
Ethics traps
Money
Competition
Rationalization
The fudge factor
I did it for someone else
The slippery slope
Inability to be objective about ourselves
Moral licensing
Conflicts of interest
Conformity
Following orders
Euphemisms and reframing
Lost in a crowd
Short-term perspective
Optimism bias
Blind spots
105
Kantian evasion or Palter
A truthful statement that is nonetheless misleading.
106
Reacting to unethical behavior
When faced with unethical behavior in your organization, you have three choices:
Loyalty
Exit (either quiet or noisy)
Voice
107
Public International law
The law governing relations among governments and international organizations.
108
Private international law
The law governing private parties in international commercial and legal transactions.
109
Treaty
A binding agreement between two or more states or international organizations that establishes their duties to each other.
110
Custom
Courts recognize custom as binding international law if it is
1. widespread and widely accepted,
2. longstanding, and
3. nations obey it out of a sense of obligation to each other.
111
Jus Cogens
A fundamental principle of law that must be followed. It cannot be altered by custom, consent, or practice.
112
Comity
The deference countries choose to give to each other’s laws and judgments.
113
Act of state
A state has the power to rule within its own borders and the courts of another state cannot question or interfere with that rule.
114
Sovereign immunity
Sovereign immunity holds that the courts of one nation lack the jurisdiction (power) to hear suits against foreign governments, unless the foreign nation has waived immunity, is engaging in commercial activity, or has violated international law.
115
Regional trade agreements
Trade agreements promoting common policies among member states.
116
Nongovernmental organization
International NGOs are not affiliated with any government. They provide services and advocacy on a range of issues.
117
Intergovernmental organization
A supranational organization of three or more states, usually established by treaty.
118
International Court of Justice (ICJ)
The World Court settles international legal disputes among states.
119
World Trade Organization (WTO)
The goal of the General Agreement on Tariffs and Trade (GATT) is to lower trade barriers worldwide. GATT created the WTO, which resolves disputes between signatories to the treaty.
120
The International Chamber of Commerce (ICC)
The world’s largest global business organization.
121
Islamic law
Based on the Koran and the action and teachings of Muhammad.
122
Extraterritorality
The power of one nation to impose its laws in other countries. In the United States, courts presume that U.S. laws do not apply to conduct abroad unless the statute explicitly says so.
123
Uniform Foreign Money Judgements Recognition Act
A U.S. act requiring states to recognize foreign judgments under certain conditions.
124
CISG
The goal of CISG is to make sales law more uniform and predictable—and to make international contracting easier. A sales agreement between an American company and a foreign company may be governed by American law, by the law of the foreign country, or by the CISG.
125
New York Convention
An international treaty that provides rules for the recognition and enforcement of foreign arbitral awards.
126
Common law
predictability and flexibility
127
Bystander rule
The common law bystander rule holds that, generally, no one has a duty to assist someone in peril unless the bystander himself created the danger. Courts have carved some exceptions during the last 100 years, but the basic rule still stands.
128
Legislation
Bills originate in Congressional committees and go from there to the full House of Representatives or Senate. If both houses pass the bill, the legislation normally must go to a Conference Committee to resolve differences between the two versions. The compromise version then goes from the Conference Committee back to both houses and, if passed by both, to the president. If the president signs the bill, it becomes a statute; if he vetoes it, Congress can pass it over his veto with a two-thirds majority in each house.
129
Statutory interpretation
Courts interpret a statute by using the plain meaning rule; then, if necessary, legislative history and intent; and finally, if necessary, public policy.
130
Administrative agencies
Congress creates federal administrative agencies with enabling legislation. The Administrative Procedure Act controls how agencies do their work.
131
Rulemaking
Agencies may promulgate legislative rules, which generally have the effect of statutes, or interpretive rules, which merely interpret existing statutes.
132
Investigation
Agencies have broad investigatory powers and may use subpoenas and, in some cases, warrantless searches to obtain information.
133
Adjudication
Agencies adjudicate cases, meaning that they hold hearings and decide issues. Adjudication generally begins with a hearing before an administrative law judge and may involve an appeal to the full agency or ultimately to federal court.
134
Agency limitations
The four most important limitations on the power of federal agencies are statutory control in the enabling legislation and the Administrative Procedure Act, political control by Congress and the president, judicial review, and the informational control created by the FOIA and the Privacy Act.
135
Constitution
a series of compromises about power
136
Articles I, II, III
Article I of the Constitution creates the Congress and grants all legislative power to it. Article II establishes the office of president and defines executive powers. Article III creates the Supreme Court and permits lower federal courts; the article also outlines the powers of the federal judiciary.
137
Commerce clause
Under the Commerce Clause, Congress may regulate any activity that has a substantial effect on interstate commerce.
138
Interstate commerce
A state may not regulate commerce in any way that will interfere with interstate commerce.
139
Supremacy clause
Under the Supremacy Clause, if there is a conflict between federal and state statutes, the federal law preempts the field. Even without a conflict, federal law preempts if Congress intended to exercise exclusive control.
140
Presidential powers
The president’s key powers include making agency appointments, proposing legislation, conducting foreign policy, and acting as commander in chief of the armed forces.
141
Federal courts
The federal courts adjudicate cases and also exercise judicial review, which is the right to declare a statute or governmental action unconstitutional and void.
142
Freedom of religion
The Establishment Clause prohibits the government from creating a church or promoting religion. In contrast, the Free Exercise Clause protects an individual’s right to hold religious beliefs and practice religion freely.
143
Freedom of speech
Freedom of speech includes symbolic acts. Political speech by both people and organizations is protected unless it is intended and likely to create imminent lawless action.
144
Regulation of speech
The government may regulate the time, place, and manner of speech.
145
Commercial speech
Commercial speech that is false or misleading may be outlawed; otherwise, regulations on this speech must be reasonable and directed to a legitimate goal.
146
Procedural due process
Procedural due process is required whenever the government attempts to take liberty or property. The amount of process that is due depends on the importance of the liberty or property threatened.
147
Takings clause
The Takings Clause prohibits a state from taking private property for public use without just compensation.
148
Substantive due process
A substantive due process analysis presumes that any economic or social regulation is valid and presumes invalid any law that infringes upon a fundamental right.
149
Equal protection clause
The Equal Protection Clause generally requires the government to treat people equally. Courts apply strict scrutiny in any equal protection case involving race, ethnicity, or fundamental rights; intermediate scrutiny to any case involving gender; and minimal scrutiny to an economic or social regulation.
150
Court systems
There are many systems of courts, one federal and one in each state. A federal court will hear a case only if it involves a federal question or diversity jurisdiction.
151
Trial courts
Trial courts determine facts and apply the law to the facts
152
Appellate courts
appeals courts generally accept the facts found by the trial court and review the trial record for errors of law
153
Pleadings
A complaint and an answer are the two most important pleadings; that is, documents that start a lawsuit
154
Motions
A motion is a formal request to the court.
155
Motion to dismiss
A request that the court terminate a case and not allow it to continue because the law does not offer a legal remedy for the plaintiff’s problem
156
Summary judgement
Summary judgment is a ruling by the court that no trial is necessary because there are no essential facts in dispute.
157
Jury trials
Generally, both plaintiff and defendant may demand a jury in any lawsuit for money damages.
158
Burden of proof
The plaintiff’s burden of proof in a civil lawsuit is a preponderance of the evidence, meaning that its version of the facts must be at least slightly more persuasive than the defendant’s. In a criminal prosecution, the government must offer proof beyond a reasonable doubt in order to win a conviction.
159
Rules of evidence
The rules of evidence determine what questions may be asked during trial, what testimony may be given, and what documents may be introduced.
160
Verdict
The verdict is the jury’s decision in a case. The losing party may ask the trial judge to overturn the verdict, seeking a JNOV or a new trial. Judges seldom grant either.
161
Appeals
An appeals court has many options. The court may affirm, upholding the lower court’s decision; modify, changing the verdict but leaving the same party victorious; reverse, transforming the loser into the winner; and/or remand, sending the case back to the lower court.
162
ADR
Alternative dispute resolution is any formal or informal process to settle disputes without a trial. Mediation, arbitration, and other forms of ADR have grown in popularity.
163
Right to jury
A criminal defendant has a right to a trial by jury for any charge that could result in a sentence of six months or longer.
164
Felony
A felony is a serious crime for which a defendant can be sentenced to one year or more in prison.
165
Conduct outlawed
The language of criminal statutes must be clear and definite.
166
Voluntary act
A defendant is not guilty of a crime if she committed it under duress. However, the defendant bears the burden of proving by a preponderance of the evidence that she acted under duress.
167
Entrapment
When the government induces the defendant to break the law, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.
168
Conspiracy
It is illegal to conspire to commit a crime, even if that crime never actually occurs.
169
Fourth amendment
The Fourth Amendment to the Constitution prohibits the government from making illegal searches and seizures. This amendment applies to individuals, corporations, partnerships, and other organizations.
170
Warrant
As a general rule, the police must obtain a warrant before conducting a search, but there are seven circumstances under which the police may search without a warrant: plain view, stop and frisk, emergencies, automobiles, lawful arrest, consent, and no expectation of privacy.
171
Probable cause
A magistrate will issue a warrant only if there is probable cause. Probable cause means that it is likely that evidence of a crime will be found in the place to be searched.
172
The Exclusionary Rule
Under the exclusionary rule, any evidence the government acquires illegally (or any information obtained as a result of this illegal behavior) may not be used at trial.
173
Fifth amendment
The Fifth Amendment requires due process in criminal cases and prohibits double jeopardy and self-incrimination.
174
Sixth amendment
The Sixth Amendment guarantees criminal defendants the right to a lawyer at all important stages of the criminal process.
175
Eighth amendment
The Eighth Amendment prohibits excessive fines and cruel and unusual punishments.
176
Larceny
Taking personal property that is in someone else’s possession with the intent to steal it.
177
Embezzlement
Embezzlement is the fraudulent conversion of property already in the defendant’s possession.
178
Fraud
Fraud refers to a variety of crimes, all of which involve the deception of another person for the purpose of obtaining money or property.
179
Identity theft
The Identity Theft and Assumption Deterrence Act of 1998 prohibits the use of false identification to commit fraud or other crime, and it also permits the victim to seek restitution in court. The Aggravated Identity Theft statute imposes a mandatory additional sentence of two years on anyone who engages in identity theft during the commission of certain crimes.
180
Arson
Arson is the malicious use of fire or explosives to damage or destroy real estate or personal property.
181
Hacking
The federal Computer Fraud and Abuse Act of 1986 prohibits hacking. It is illegal, among other things, to access a computer without authorization and obtain information from it.
182
Corporate liability
If a company’s agent commits a criminal act within the scope of her employment and with the intent to benefit the corporation, the company is liable.
183
Making false statements
It is illegal to make false statements or engage in a cover-up during any dealings with the U.S. government.
184
RICO
RICO prohibits using two or more racketeering acts to accomplish any of these goals:
1. investing in or acquiring legitimate businesses with criminal money,
2. maintaining or acquiring businesses through criminal activity, or
3. operating businesses through criminal activity.
185
Money laundering
Money laundering consists of taking profits from a criminal act and either using them to promote crime or attempting to conceal their source.
186
Immigration law
It is illegal to knowingly employ unauthorized workers.
187
Foreign Corrupt Practices Act
Under the Foreign Corrupt Practices Act, it is illegal for any employee or agent of a U.S. company (and some foreign companies) or any U.S. citizen to give anything of value to any foreign official for purposes of influencing an official decision (unless the payment was merely intended to facilitate a routine governmental action).
188
Libel
written defamation
189
Slander
oral defamation
190
Tort
A tort is a violation of a duty imposed by the civil law.
191
Four elements to a defamation case
1. Defamatory statement. This is a factual statement that is likely to harm another person’s reputation. (opinions are not factual)
2. Falsity. The statement must be false.
3. Communicated. The statement must be communicated to at least one person other than the plaintiff.
4. Injury. The plaintiff must show some injury, unless the case involves false statements about sexual behavior, crimes, contagious diseases, and professional abilities.
192
Absolute privilege
A witness testifying in a court or legislature may never be sued for defamation
193
False imprisonment
The intentional restraint of another person without reasonable cause and without consent
194
Intentional infliction of emotional distress (IIED)
results from extreme and outrageous conduct that causes serious emotional harm
195
Battery
an intentional touching of another person in a way that is harmful or offensive
196
Assault
when a defendant does some act that makes a plaintiff fear an imminent battery
197
Trespass
intentionally entering land that belongs to someone else or remaining on the land after being asked to leave
198
Conversion
taking or using someone’s personal property without consent
199
Fraud
injuring another person by deliberate deception
200
Compensatory damages
meaning an amount of money that the court believes will restore him to the position he was in before the defendant’s conduct caused injury
201
Simple recovery principle
requires a court to settle the matter once and for all, by awarding a lump sum for past and future expenses, if there will be any
202
Punitive damages
intended to punish the defendant for conduct that is extreme and outrageous
203
Tortious interference with a contract
An intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintiff
204
Tortious interference with a prospective advantage
Malicious interference with a developing economic relationship
205
False advertising
must prove 4 elements:
The defendants made false or misleading fact statements about its products or those of a competitor
The statements were material and likely to influence purchasing decisions
The defendants used the statements in commercial advertising or promotion
The statements created the likelihood of harm
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Defamation
Defamation involves a defamatory statement that is false, uttered to a third person, and causes an injury. Opinion and privilege are valid defenses.
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Malice
Public personalities can win a defamation suit only by proving actual malice.
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False imprisonment
False imprisonment is the intentional restraint of another person without reasonable cause and without consent.
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Emotional distress
The intentional infliction of emotional distress involves extreme and outrageous conduct that causes serious emotional harm.
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Lanham act
prohibits false statements in commercial advertising or promotion
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Duty of due care
The defendant had a legal responsibility to the plaintiff. This is the point from the Palsgraf case.
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Breach
The defendant breached her duty of care or failed to meet her legal obligations.
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Factual cause
The defendant’s conduct actually caused the injury.
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Proximate cause
It was foreseeable that conduct like the defendant’s might cause this type of harm.
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Damages - negligence
The plaintiff has actually been hurt or has actually suffered a measureable loss.
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Res Ipsa Loquitur
"the thing speaks for itself"
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Contributory negligence
if the plaintiff is even slightly negligent, she recovers nothing
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Comparative negligence
a plaintiff may generally recover even if she is partially responsible
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Assumption of risk
A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured
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Strict liability
A branch of tort law that imposes a much higher level of liability when harm results from ultrahazardous acts or defective products
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Ultrahazardous Activity
Ultrahazardous activities include using harmful chemicals, operating explosives, keeping wild animals, bringing dangerous substances onto property, and a few similar activities where the danger to the general public is especially great. A defendant engaging in an ultrahazardous activity is almost always liable for any harm that results.
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Product liability
claims in both negligence and strict liability
- negligent design
- negligent manufacture
- failure to warn
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Elements of negligence
duty of due care, breach, factual causation, proximate causation, and damage
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Negligence per se
If a legislature sets a minimum standard of care for a particular activity in order to protect a certain group of people, and a violation of the statute injures a member of that group, the defendant has committed negligence per se.
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The Fourth Amendment
prohibits unreasonable searches and seizures by the government
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Third-party doctrine
The Fourth Amendment does not protect the privacy of information that has already become public or has been shared
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Public Disclosure of Private Facts
prohibits the unjustifiable revelation of truthful, but secret, information
1. The defendant made public disclosure
2. The disclosed facts had been private
3. The facts were not of legitimate concern to the publi
4. The disclosure is highly offensive to a reasonable person
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Regulation of Online Speech
defamation, threats, revenge porn, and the sexual solicitation of minors
opinions are not defamatory, statements must be verifiably false, anonymity
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Liability of Internet Service Providers (ISP's)
not liable for content provided by someone else, only content providers are liable
But to avoid liability, the ISP or website must not be involved in creating or otherwise developing the content
Communications Decency Act of 1996 (CDA) , which created broad immunity for ISPs and websites
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Reasonable expectation of privacy
There is a reasonable expectation of privacy if
- the person had a subjective expectation of privacy and
- society accepts that expectation as reasonable.
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Intrusion
Intrusion into someone’s private sphere is a tort if a reasonable person would find it offensive.
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What does the First Amendment cover online?
protects speech on the internet but does not cover obscenity, child pornography, true threats, and fraud
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Federal privacy law/statues
the United States has adopted a collection of federal and state privacy laws that apply to particular types of personal data
Different laws apply to your consumer credit information, your medical data, and even the movies you stream
Some laws also apply to the way information is collected and from whom. We first focus on federal laws addressing surveillance and spying.
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Contract
a legally enforceable agreement
- offer
- acceptance
- consideration
- legality
- capacity
- consent
- writing
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Sources of Contract Law
Before the fifteenth century, courts rarely enforced promises at all. By the 1600s, courts enforced many mutual promises, and, by 1900, most promises containing the seven elements of a contract were strictly enforced.
(Courts have not always assumed that promises are legally significant. In the twelfth and thirteenth centuries, promises were not binding unless a person made them in writing and affixed a seal to the document.
The common law changed very slowly, but by the fifteenth century, courts began to allow some suits based on a broken promise.
In 1602, English courts began to enforce mutual promises; that is, deals in which neither party gave anything to the other but both promised to do something in the future.)
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Bilateral contract
A promise made in exchange for another promise
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Executory contract
when it has been made, but one or more parties has not yet fulfilled its obligations
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Executed contract
when all parties have fulfilled their obligations
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Valid contract
one that satisfies all of the law’s requirements
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Unenforceable agreement
occurs when the parties intend to form a valid bargain, but a court declares that some rule of law prevents enforcing it
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Voidable contract
when the law permits one party to terminate the agreement
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Void agreement
one that neither party can enforce, usually because the purpose of the deal is illegal or because one of the parties had no legal authority to make a contract
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Express contract
the two parties explicitly state all the important terms of their agreement
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Implied contract
the words and conduct of the parties indicate that they intended an agreement
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Non-Contracts or Common Law Fallbacks
Promissory Estoppel
Quasi-Contracts (Unjust Enrichment)
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Promissory estoppel
A possible remedy for an injured plaintiff in a case with no valid contract, when the plaintiff can show a promise, reasonable reliance, and injustice
The only way to avoid injustice is to enforce the promise.
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Quasi-contract
A possible remedy for an injured plaintiff in a case with no valid contract, when the plaintiff can show benefit to the defendant, reasonable expectation of payment, and unjust enrichment
The defendant would be unjustly enriched if he did not pay.
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Quantum meruit
“As much as he deserves”—the damages awarded in a quasi-contract case
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Uniform Commercial Code and Common Law
If a contract is for the sale of goods, the UCC is the relevant body of law. For anything else, the common law governs. If a contract involves both goods and services, a court will examine the agreement’s primary purpose to determine which law applies.
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Offer
An act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms
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Letter of intent
A letter that summarizes negotiating progress
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What is not usually an offer?
- invite to bargain
- price quote
- advertisements
- putting an item up for auction
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Definiteness
what an offer must be, not enough that the offeror indicates that she intends to enter into an agreement, they are vague, then even if the offeree agrees to the deal, a court does not have enough information to enforce it and there is no contract
although under the UCC the parties may create a contract that has open terms
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Open price
if the parties do not settle on a price
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Output contract
Obligates the seller to sell all of his output to the buyer, who agrees to accept it
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Requirements contract
Obligates a buyer to obtain all of his needed goods from the seller
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Gap-filler provisions
Uniform Commercial Code (UCC) rules for supplying missing terms
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Mirror image rule
Requires that acceptance be on precisely the same terms as the offer
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Communication of acceptance
follow method or manner or be reasonable about it, acceptance is affective upon dispatch (mailbox rule)
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Meeting of the minds
The parties can form a contract only if they have a meeting of the minds, which requires that they understand each other and show that they intend to reach an agreement.
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Termination
An offer may be terminated by revocation, rejection, expiration, or operation of law.
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Online wrap agreements
Clickwrap agreements are generally enforceable, but browsewraps are only enforceable when websites prove that the user knew about the terms. Hybridwraps are enforceable if the notice is conspicuous and near the click-to-consent button.
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