Test 3 Flashcards
Criminal Law
Behavior that is dangerous to society, prosecuted by government, and compensation to society (burglary, assault, murder)
Contract Law
Enforcement of private agreements, individual initiates, compensation to individual
Tort Law
Obligation/Duty owed to each other, individual imitates, compensation to individual (infliction of emotional distress)
Basis of Tort Law
Wrong, Damage/injury, Compensation
Remedy for Violation of Protected Interests
Life, Liberty, Property
2 Types of Torts
Negligence and Intentional
Negligence
Failure to use reasonable care (Duty, Breach of Duty, Cause in Fact, Proximate Cause, Injury/Damage)
Intentional
Deliberate actions (but not necessarily intent to harm)
Assault
Intended to cause harmful or offensive contact OR causes reasonable suspicion that harmful or offensive contact in imminent (words coupled with act)
Battery
An act with the intent to cause harmful or offensive bodily contact or contact, any contact that violates ordinary social usages without consent
False Imprisonment
Unlawful restraint without consent, words/acts/operating on the will of a person/personal violence (not moral pressure)
Defamation
Publication of a false statement of fact to a third party, harms person’s reputation, resulting in damages, libel: written, slander: spoken
Intentional Infliction of Emotional Distress
Extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another
Abusive/Frivolous Litigation
Sued without a just or proper reason
Malicious Prosecution
Party initiates lawsuit with malice and without a legitimate legal reason
Abuse of Process
Person using legal system in an improper manner or to accomplish a purpose for which the process was not designed
Trespass to Land
Plaintiff must show that he possessed the land where the alleged trespass occurred and that the alleged trespasser intended to and did enter the land without a legal right to do so
Trespass to Chattel
Interference with or harm to personal property
Defense
Trespass warranted/justified
Conversion
Civil liability for theft
How does a person commit conversion?
Knowingly or intentionally exerting unauthorized control over the property of another person
Slander of Quality
Publication of false information about another’s product that causes a third person to refrain from using a product and results in economic damage to the owner of the property
Slander of Title
Knowing publication of false information with regard to an individual’s property rights that result in damage to the owner of the property
Intentional Interference with a Contractual Relationship
Existence of a valid contract
Defendant’s knowledge of the existence of that contract
The defendant’s intentional interference with that contract
The absence of justification
Damages resulting from a defendant’s wrongful interference with the relationship
Defense of Intentional Interference with a Contractual Relationship
Justified and permissible behavior, bona fide competitive behavior
Torts to Persons
Pecuniary losses, Pain/distress resulting from physical harm, Dignitary harm in absence of physical harm
Pecuniary Losses
Monetary losses resulting from physical harm caused by tort (lost wages, medical expenses, future medical expenses)
Pain/Distress Resulting from Physical Harm
No standard amount, left to jury’s discretion
Dignitary Harm in Absence of Physical Harm
Invasion of Plaintiff’s right in injury into itself; nominal damages, emotional distress in absence of physical harm is also compensable
Respondeat Superior
Doctrine that holds a business or organization liable for the torts of any employee whenever a commits a tort while working for that business or organization
Fraud
Intentional misrepresentation of a past/existing made with knowledge or reckless ignorance of falsity causing the claimant to rely upon misrepresentation to the claimant’s detriment
Defenses to Fraud
Puffery/statement of opinion, not fact
Dram Shop Liability
A person who furnishes alcohol to a person who then causes an injury to another is liable if the person had knowledge that the intoxicated person was intoxicated at the time OR the intoxication was proximate or foreseeable of the injuries
Premises Liability
For a condition of the property, For an action by another individual on the property (Negligence/Criminal)
Professional Malpractice
Lawyer, Doctor, Accountant
Authority to Regulate: Federal Government
Enumerated Powers, gets powers from the Constitution
What amendment gives the Federal Government powers?
10th Amendment: Powers neither delegated to the states are reserved to the states and people
Authority to Regulate: State Government
Police power, States can adopt any law that is not prohibited by the Constitution, touches on citizens’ daily lives and should be administered by smaller governments closer to the governed
What Authority does the Federal Govt have to Regulate Business?
Article I, Section 8, “Congress shall have the power to regulate commerce with foreign nations and among the states”
10th Amendment, “The powers not delegated to the US by the Constitution are reserved to the states or to the people”
Federal Taxing and Spending Power
Virtually unlimited power to regulate business through imposition of taxes, tax money can be spent to advance “general welfare”
The requirement to maintain minimum health insurance
Commerce Clause Challenge: regulate people who are not currently participants in the health care market, Congress does not have the power to force people to become active in the market, unconstitutional, never a case in which it doesn’t apply
Taxing Authority Challenge: mandate as a tax rather than authorized, no federal authority to order people to buy health insurance, constitutional
Dormant (Implied) Commerce Clause
State and local laws are unconstitutional if they place an undue burden on interstate commerce
Justifications for Dormant Commerce Clause: Historical
Framers of Constitution intended to prevent state laws that interfered with interstate commerce
Justifications for Dormant Commerce Clause: Economic
Economy is better off if state and local laws impeding interstate commerce are invalidated
Justifications for Dormant Commerce Clause: Political
States and their citizens should not be harmed by laws in other states where they lack representation
Does the State law discriminate against out of state business?
Does law impose cost on out of state company that it does not impose on in state? Does the effect exclude virtually all out-of-staters from market?
Preemption
Where the Federal Govt has regulated, the State’s ability to regulate is limited or prohibited
Implied Preemption Field
Where scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for state to supplement it
Implied Preemption Conflict
Where compliance with both federal and state regulations is a physical impossibility or where state law is an obstacle to accomplishment and execution of full purposes and objectives of Congress
Precedent
Binding authority, a source of law that a Court must follow in deciding a case
Persuasive authority
Can be used in cases of first impression
Stare Decisis
“Let the Decision Stand”
Rule of law set forth is used as the guiding principle for deciding future cases involving similar issues, higher court decisions are binding on lower courts, a court should not overturn its own precedent unless there is a compelling reason to do so
Where might Stare Decisis not apply?
To keep up with national progress, to reflect the tide of social opinion, when a precedent has been eroded by other rulings, to account for technological changes, to bestow more individual civil rights, to give the US States more autonomy
Exceptions to Employment at Will
Contract Theory: written and implied
Tort Theory: fraud
Public Policy: whistleblower protection
Constitutional: discrimination
Immigration Law: IRCA
Granted amnesty to certain groups of aliens living illegally in the US but imposes a liability on companies
The Immigration Act
Ability to hire specially qualified foreign workers, cap on number of visas issued each year, temporary/permanent visas
Title VII of the Civil Rights Act
Prohibits job discrimination against employees: Race, Color, National origin, Religion (Protected Classes)
Who does Title VII apply to?
Private and public employers, 15+ employees (State discrimination laws may be more restrictive)
Disparate Treatment
Workplace policy that is neutral on its face, but has a disparate impact against protected class (Employment Decisions, Harassment, Retaliation)
Prima Facie
Member of protected class, applied and was qualified, was rejected, the position remained open
What happens after a plaintiff establishes a pima facia case?
Burden of proof shifts to employer to articulate a legit, non-discriminatory reason for employee’s rejection
Disparate Impact
Discrimination occurs when employer’s practices, procedures or tests, even though they do not appear discriminatory, adversely impact a protected class (usually unintentionally)
Equal Employment Opportunity Commission: EEOC
Investigates and attempts to obtain parties’ voluntary consent to an out-of-court settlement, can file lawsuit against employer on behalf of employee
What are some pre-employment inquiries that may show intent to discriminate?
Whether an applicant is pregnant
Marital Status of applicant
Number/Age of children
Future child bearing plans
Employment status of spouse
Is a help wanted seeking “recent college graduates” prohibited by the EEOC?
Yes, discourages people 40+ from applying
Is an employer relying on word of mouth referrals from its mostly Hispanic work force for recruitment?
Yes, if the result is that almost all new hires are Hispanic
Sexual Harassment
Unwelcome sexual attention (verbal/visual/physical,) unreasonable interfering with employee’s work performance or create a hostile/offensive working environment
Verbal/Written Sexual Harassment
Commenting on clothing, body, making sex-based jokes, spreading rumors about a person’s sexual life
Physical Sexual Harassment
Impeding/blocking someone’s movement, inappropriate touching, assaulting
Nonverbal Sexual Harassment
Looking up and down a person’s body, making derogatory gestures or facial expressions, following a person around
Visual Sexual Harassment
Displaying or sharing drawings/pictures/emails of a sexual nature
Sexual Harassment Employer Liability: Supervisor
Strictly liable for harassing conduct that result in tangible employment actions such as discharge, demotion, or undesirable reassignment
Plaintiff’s Burden of Proof: Sexual Harassment
Must show work environment was with objectively and subjectively, and offensive, harassment complained of was based on h/h sex, and the conduct was severe or pervasive
Managing Employment Related Litigation Risk
Document, provide thorough job description, personnel manual, have employees sign off on policies, give written warnings/performance evaluations, document employee incidents
Administrative Law
Powers/Functions of administrative authorities, manners in which powers are to be exercised, remedies which are available to the aggrieved persons when those powers are abused by authorities
Federal Administrative Agencies
Authorized by Congress to issue rules/regulations that have the same force and effect as statutes (Executive Agencies and Independent Regulatory Agencies)
State Administrative Agencies
Agencies authorized by State Legislatures to issue rules and
regulations that have the same force and effect as statutes
Reasons for Administrative Agencies
Specificity, Expertise, Protection, Regulation, Services
Functions of Administrative Agencies
Rule making, enforcement, adjudicative, advising, investigating
Appeal of Administrative Law Ruling
Congress’ delegation of authority was invalid, agency excessed its authority, adopted rule is unconstitutional, agency failed to follow notice and comment procedures, adopted rule is arbitrary and capricious
Major Questions Doctrine
If an agency seeks to decide an issue of
major national significance (economic or political), a general delegation of authority from Congress may not be enough. Instead, the agency’s action must be authorized by clear statutory authority.
Administrative Agencies and Business
Regulation can increase cost of doing business, business must be familiar with regulations and have personnel to ensure compliance, judicial review is limited
Protection of Businesses
Damages for tortious conduct and breach of contract, equitable remedies, sanctions imposed under criminal wrong
Felony
A crime that carries the most severe sanction, ranging from 1+ year-life in prison
Misdemeanor
A less serious crime punishable by a fine or imprisonment for up to one year
Petty Offense
A subset of misdemeanors comprised of the least serious offenses
Actus Reus
The performance of a prohibited act
Mens Rea
With a specified state of mind, or intent, on part of the actor
Criminal Act
Most acts of commission
Act of omission can be a crime of the person has a legal duty to perform the omitted act
Criminal Negligence
Defendant take an unjustified, substantial, and foreseeable risk that result in harm
Recklessness
Consciously disregards a substantial and unjustifiable risk
Strict Liability
Some federal offenses, environmental/illegal drugs/public health and safety
Violent Crimes
Acts against a person that causes them to suffer harm/death, crime is “aggravated” when a deadly weapon is used (Assault, battery, rape, robbery, murder)
Property Crime
Where the goal of the offender is to gain economic gain or to damage property (Burglary, Larceny: wrongfully taking and carrying away a person’s personal property with intent to permanently deprive the owner of property, Obtaining goods by false pretenses, receiving stolen goods, arson, theft, forgery)
Public Order Crime
Activity considered contrary to public values and morals, victimless crimes (public drunkenness, prostitution, gambling, illegal drug use)
White Collar Crimes
Crimes that occur in the business context and use non-violent means to obtain personal or business advantage, usually take place in course of legitimate business occupation
Organized Crime
Operates illegitimately by, among other things, providing illegal goods and services (gambling, prostitution, illegal narcotics, counterfeiting)
Money Laundering
Engaging in financial transactions that conceal the identity, source, or destination of illegally gained funds through a legitimate business enterprise
RICO
Racketeer Influences and Corrupt Organizations Act: prohibits use income obtained from racketeering activity to purchase any interest in an enterprise
Defenses to Criminal Liability: Justifiable Use of Force (self-defense)
Privilege to protect one’s self or property against injury by another, reasonably necessary to protect one’s self/property using non-deadly force whenever possible
Defenses to Criminal Liability: Necessity
The criminal act was necessary to prevent greater harm
Defenses to Criminal Liability: Insanity
a person with a mental illness may be incapable of the the state of mind required to commit a crime
Defenses to Criminal Liability: Mistake
Negates the mental state necessary to commit the crime
Defenses to Criminal Liability: Duress
Wrongful threat induces another to commit a crime the h/s would not have otherwise committed
Defenses to Criminal Liability: Entrapment
Individual claims h/s was induced by a police official to commit a crime that h/s would not have otherwise committed
Defenses to Criminal Liability: Statute of Limitations
Criminal prosecutions must be brought within a specified period of years after the crime
Defenses to Criminal Liability: Immunity
5th Amendment: no person shall be compelled in any criminal case to be a witness against himself
An option given to a defendant that allows him not to be prosecuted in exchange for information given to the state
6th Amendment Protections
Speedy and public trial, impartial jury, be informed of criminal charges, confront witness, compel witness to appear in court, assistance of counsel
8th Amendment Protections
No excessive bail
No cruel and unusual punishment
Exclusionary Rule v. Miranda Rule
Miranda rule: statements of suspect normally not admissible in court, public safety exception, must request to exercise right to council
Cyber Crime
Violation of criminal law that involves knowledge of compute technology for its perpetration, investigation, or prosecution
Cyber Fraud
Misrepresentation knowingly made to deceive another that occurs online
Cyber Theft
Theft of data from a computer via the internet (Identity/Password Theft, Phishing)
Proactive Steps for Business Owners regarding Cyber Security
Passwords, encryption, firewalls
Instruction/Training of employees
Confidentiality agreements regarding programs/data
