test 2 Flashcards
Tort
civil wrong causing personal injury
a wrongful act other than breach of contract
an infringement of a right that is not necessarily illegal, but causes harm
Tortfeasor
The criminal equivalent for a person who commits a civil wrong that leads to a tort
Intentional Torts
Deliberate actions
Negligence
Tort; Careless actions
Strict Liability
Tort; Absolute liability for injury
Tort Reform
More difficult for injured people to:
file a lawsuit
obtain a jury trial, and
limits amount of money received by injured person in a lawsuit
Limits on Punitive Damages
8th Amendment-Excessive punitive damages=Cruel and unusual punishment and due process is violated
Defamation
Untrue statement, published; Intentional Tort
Slander
Oral Defamation
Libel
Written Defamation
Defamation Defenses
Truth is a complete defense, Privileged speech (absolute and qualified)
Absolute Privilege
Strong public interest supports protecting the speech regardless of whether it is true i.e. Congress and Judicial proceedings
Qualified Privilege
limited liability for defamation, moral obligation to speak i.e. news outlets
Contract Interference
interference with contracts when parties are not allowed intentionally damages the plaintiff’s contractual relationships
False Imprisonment
detention of a person for any period of time against his or her will without justification or consent
False Imprisonment Claims
willful detention, w/o consent, w/o authority of law
Defense to False Imprisonment
Shopkeeper’s privilege
Intentional Infliction of Emotional Distress
conduct that exceeds all bounds of decency
Emotional Distress Elements
Defendant:
1) acted intentionally
2)the conduct was extreme and outrageous,
3)caused distress.
Plaintiff:
4) suffers severe emotional distress as a result
Invasion of Privacy
3 Torts
1) Intrusion into private affairs
2) Public disclosure of private facts
3) appropriation of another’s name, likeness, image for commercial advantage
Negligence
harm caused by carelessness, failure to exercise care of a reasonably prudent person, breach of a civil duty
Negligence Elements
1) duty
2) breach of duty
3) causation
4) proximate cause
5) damages
Duty
whether a member of society, or special relationship, all persons are expected to behave as an ordinary and reasonably prudent person
Breach of Duty
once duty is established, if the defendant fell short
Causation
“But/for” causation test, breach of duty was cause of damages
Proximate Cause
the injury was a reasonably foreseeable consequence of defendant’s actions
Damages
established damages that resulted from the defendant’s negligence
Special Damages
quantifiable dollar losses
General Damages
not quantified in monetary terms (i.e. pain & suffering)
Punitive Damages
to punish the defendant, not to compensate the plaintiff, high level of carelessness.
Contributory Negligence
Plaintiff also negligent, so barred from recovering damages (non-maritime)
Comparative Negligence
Plaintiff also negligent, recovery is reduced to percentage (admiralty)
Assumption of Risk
Requires defendant prove that plaintiff knew of inherent risk
Defenses to Negligence
Contributary, Comparative, Assumption of Risk
Strict Liability
1) violation of a statute
2) Defective Product
3) Unseaworthiness of a vessel or crew (seaman only)
Reasons for Business Crime
Economic Pressure Competitive Pressure Meeting Goals Bonuses Salary Increase Promotion GREED
White-collar crime
Nonviolent criminal offenses involving fraud and illegal transactions
White-collar criminals
opportunists
educated
access to large sums of money
Corporate Crime
committed either by a corporation or by individuals identified with a corporation
Intra-business Crime
within a business i.e. kickbacks
Inter-business Crime
between business i.e. stealing from competitors
Embezzlement
Misappropriation of items with which a person has been entrusted (legal possession, fraudulently assumes right)
Manner of Embezzlement
Premeditated
Systematic
Methodical
Embezzlement Elements
The fraudulent conversion of the property of another by a person who has lawful possession of the property
Kickback
illegal, secret payment made in return for a referral which resulted in a transaction or contract
Employee Theft
stealing, use or misuse of their employer’s assets
Types of employee theft
money time supplies property information overcharging customers
FBI Tracking
Fraud
Forgery
Embezzlement
Fraud
false representation of a matter of fact by words or conduct that is intended to deceive another
Fraud elements
Knowledge of an untrue statement False statement Intent to deceive Justifiable reliance on statement Injury as a result
Wire Fraud
electronic communication
Mail Fraud
postal system
Securities Fraud
Stock fraud/investment fraud, false information
Insider Trading
confidential information on stock exchange
Money Laundering
washing of money (legitimization) of illegally obtained money
Mortgage Fraud
misrepresentation or omit information to obtain loan
Healthcare Fraud
billing for services not rendered
Telemarketing Fraud
perpetrators use the telephone as the primary means of communication
Liable for Business Crime
authorized the conduct
knew about the conduct but did nothing
failed to act reasonably
assist
Lack of penalties for White-collar Crime
The best lawyers Favorable laws Difficult to assign blame Little police effort Individual Perception
Responsibility of SEC
Interpret laws Issue new rules (oversee)Inspections of agencies Oversee private regulatory organizations Coordinate w/federal, state and foreign authorities
Division of Enforcement
Assists the SEC law enforcement agency by recommendations and prosecutions
Insider Trading & Securities Fraud Enforcement Act of 1988
fines up to 3x the profit of offender, cash payments to “whistle-blowers”, civil penalties for managers failing to act
White-Collar Kingpin Act
minimum federal mandatory sentences on corporate officers
Sarbanes-Oxley Act 2002
Wire and Fraud charges increased from 5 years to 20 years and penalties for violation of trust increased from 1 to 10 years and $5,000 to $100,000
Financial Services Reform Act
AKA Dodd-Frank Wall Street Reform and Consumer Protection Act, covering money lenders and imposes civil penalties
United States Sentencing Commission
Independent agency in the judicial branch, establishing sentencing policies
Federal Sentencing Guidelines
Rules that set out a uniform sentencing policy to alleviate disparities
Corporate Penalty Reductions
1) Code of Conduct
2) Trusted Intermediary
3) Hotline
4) Mandatory Training for Executives
Criminal Intent
Mens Rea
Doctrine of Conscious Avoidance
Unwillingness to curb a wrongful act
Actus Reus
Act of the crime
Racketeer Influenced and Corrupt Organizations Act (RICO)
for criminal penalties for acts performed as a part of an ongoing criminal organization.
Racketeering
crimes ordered for others to do, at least 2 acts w/in 10 years
Exceptions to warrant requirements
Records being destroyed
“plain view”
5th Amendment Rights
(Natural Persons only) Protection against self-incrimination, Miranda Rights and due process rights
Due Process Protections
- Preliminary Hearing/Grand Jury
- Arrainment
Due Process
Discover Pretrial Conference Omnibus Hearing Trial Appeal
Corporate Political Speech
given full First Amendment protection
Eminent Domain
The takings clause, right of a government body to take title to a citizen’s private property for public use. Per 5th Amendment “Property shall not be taken for a public use without just compensation”
Factors of Eminent Domain
1) Public purpose
2) Taking(as opposed to regulation)
3) Just Compensation
Bipartisan Campaign Reform Act of 2002
Regulates “soft money”. Prohibits a federal candidate name in ads paid by a corporation w/in 30 days of a primary caucus or 60 days of general election
Balancing Test- Interstate Commerce
1) Courts examine safety, welfare and health issues
2) Unfair Advantage?
3) Effect on Commerce
4) Accomplished another way, less burdened?
Taxes Imposed Standards
1) Cannot Discriminate
2) Cannot Unduly Burden
3) Sufficient Nexus
4) Apportioned Fairly
14th Amendment
Equal Protection Rights for Business
5th Amendment
Eminent Domain, Due Process, and Self-incrimination
4th Amendment
Privacy
1st Amendment
Freedom of Speech
Article 1 Section 8
Congress has power ti lay and collect taxes, duties “Regulate Commerce”
Constitution
Supreme law, 1787, oldest, shortest, 7 articles, 27 amendments
Article I
Legislative Branch, Powers of congress
Article I Section 1
Vesting Clause, all legislative powers granted to congress
Article I Section 2
Taxes apportioned and census every 10 yrs
Article I Section 3
Senate
Article I Section 4
Election Powers for Senators and Representatives
Article I Section 5
Election Procedure
Article I Section 6
Salaries for Congressmen
Article I Section 7
Legislative Procedure
Article I Section 8
Regulate commerce with foreign nations, states, Indian Tribes
Article I Section 9
Limits power of Congress
Article 1 Section 10
Limits power of states
Article II
Executive Branch comprising of President and other executives
Article II Section 1
President and VP
Article II Section 2
President powers
Article II Section 3
President responsibilities
Article II Section 4
Impeachment
Article III
Judicial Branch; creates US Supreme Court, authorizes congress to create inferior courts
Article III Section 1
Federal Courts
Article III Section 2
Judicial power, jurisdiction, trial by jury
Article III Section 3
Treason
Judicial Review
Doctrine under which legislative and executive actions subject to review
1) Freedom of speech
2) Right to privacy
Article IV
State Interrelationships
Article V
Procedures for amendments
Article VI
Supremacy Clause, establishing the US Constitution, US Treaties, and Federal Statutes as “Supreme Law of the Land”
Article VII
State Ratification of the Constitution
Interstate Commerce
the buying and selling of products and services across state borders
