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Legal Environment of Business > Test 3 > Flashcards

Test 3 Flashcards

1
Q

Criminal Law

A

Behavior that is dangerous to society, prosecuted by government, and compensation to society (burglary, assault, murder)

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2
Q

Contract Law

A

Enforcement of private agreements, individual initiates, compensation to individual

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3
Q

Tort Law

A

Obligation/Duty owed to each other, individual imitates, compensation to individual (infliction of emotional distress)

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4
Q

Basis of Tort Law

A

Wrong, Damage/injury, Compensation

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5
Q

Remedy for Violation of Protected Interests

A

Life, Liberty, Property

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6
Q

2 Types of Torts

A

Negligence and Intentional

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7
Q

Negligence

A

Failure to use reasonable care (Duty, Breach of Duty, Cause in Fact, Proximate Cause, Injury/Damage)

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8
Q

Intentional

A

Deliberate actions (but not necessarily intent to harm)

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9
Q

Assault

A

Intended to cause harmful or offensive contact OR causes reasonable suspicion that harmful or offensive contact in imminent (words coupled with act)

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10
Q

Battery

A

An act with the intent to cause harmful or offensive bodily contact or contact, any contact that violates ordinary social usages without consent

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11
Q

False Imprisonment

A

Unlawful restraint without consent, words/acts/operating on the will of a person/personal violence (not moral pressure)

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12
Q

Defamation

A

Publication of a false statement of fact to a third party, harms person’s reputation, resulting in damages, libel: written, slander: spoken

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13
Q

Intentional Infliction of Emotional Distress

A

Extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another

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14
Q

Abusive/Frivolous Litigation

A

Sued without a just or proper reason

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15
Q

Malicious Prosecution

A

Party initiates lawsuit with malice and without a legitimate legal reason

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16
Q

Abuse of Process

A

Person using legal system in an improper manner or to accomplish a purpose for which the process was not designed

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17
Q

Trespass to Land

A

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

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18
Q

Trespass to Chattel

A

Interference with or harm to personal property

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19
Q

Defense

A

Trespass warranted/justified

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20
Q

Conversion

A

Civil liability for theft

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21
Q

How does a person commit conversion?

A

Knowingly or intentionally exerting unauthorized control over the property of another person

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22
Q

Slander of Quality

A

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

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23
Q

Slander of Title

A

Knowing publication of false information with regard to an individual’s property rights that result in damage to the owner of the property

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24
Q

Intentional Interference with a Contractual Relationship

A

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

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25
Q

Defense of Intentional Interference with a Contractual Relationship

A

Justified and permissible behavior, bona fide competitive behavior

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26
Q

Torts to Persons

A

Pecuniary losses, Pain/distress resulting from physical harm, Dignitary harm in absence of physical harm

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27
Q

Pecuniary Losses

A

Monetary losses resulting from physical harm caused by tort (lost wages, medical expenses, future medical expenses)

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28
Q

Pain/Distress Resulting from Physical Harm

A

No standard amount, left to jury’s discretion

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29
Q

Dignitary Harm in Absence of Physical Harm

A

Invasion of Plaintiff’s right in injury into itself; nominal damages, emotional distress in absence of physical harm is also compensable

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30
Q

Respondeat Superior

A

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

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31
Q

Fraud

A

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

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32
Q

Defenses to Fraud

A

Puffery/statement of opinion, not fact

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33
Q

Dram Shop Liability

A

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

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34
Q

Premises Liability

A

For a condition of the property, For an action by another individual on the property (Negligence/Criminal)

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35
Q

Professional Malpractice

A

Lawyer, Doctor, Accountant

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36
Q

Authority to Regulate: Federal Government

A

Enumerated Powers, gets powers from the Constitution

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37
Q

What amendment gives the Federal Government powers?

A

10th Amendment: Powers neither delegated to the states are reserved to the states and people

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38
Q

Authority to Regulate: State Government

A

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

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39
Q

What Authority does the Federal Govt have to Regulate Business?

A

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”

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40
Q

Federal Taxing and Spending Power

A

Virtually unlimited power to regulate business through imposition of taxes, tax money can be spent to advance “general welfare”

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41
Q

The requirement to maintain minimum health insurance

A

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

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42
Q

Dormant (Implied) Commerce Clause

A

State and local laws are unconstitutional if they place an undue burden on interstate commerce

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43
Q

Justifications for Dormant Commerce Clause: Historical

A

Framers of Constitution intended to prevent state laws that interfered with interstate commerce

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44
Q

Justifications for Dormant Commerce Clause: Economic

A

Economy is better off if state and local laws impeding interstate commerce are invalidated

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45
Q

Justifications for Dormant Commerce Clause: Political

A

States and their citizens should not be harmed by laws in other states where they lack representation

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46
Q

Does the State law discriminate against out of state business?

A

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?

47
Q

Preemption

A

Where the Federal Govt has regulated, the State’s ability to regulate is limited or prohibited

48
Q

Implied Preemption Field

A

Where scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for state to supplement it

49
Q

Implied Preemption Conflict

A

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

50
Q

Precedent

A

Binding authority, a source of law that a Court must follow in deciding a case

51
Q

Persuasive authority

A

Can be used in cases of first impression

52
Q

Stare Decisis

A

“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

53
Q

Where might Stare Decisis not apply?

A

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

54
Q

Exceptions to Employment at Will

A

Contract Theory: written and implied
Tort Theory: fraud
Public Policy: whistleblower protection
Constitutional: discrimination

55
Q

Immigration Law: IRCA

A

Granted amnesty to certain groups of aliens living illegally in the US but imposes a liability on companies

56
Q

The Immigration Act

A

Ability to hire specially qualified foreign workers, cap on number of visas issued each year, temporary/permanent visas

57
Q

Title VII of the Civil Rights Act

A

Prohibits job discrimination against employees: Race, Color, National origin, Religion (Protected Classes)

58
Q

Who does Title VII apply to?

A

Private and public employers, 15+ employees (State discrimination laws may be more restrictive)

59
Q

Disparate Treatment

A

Workplace policy that is neutral on its face, but has a disparate impact against protected class (Employment Decisions, Harassment, Retaliation)

60
Q

Prima Facie

A

Member of protected class, applied and was qualified, was rejected, the position remained open

61
Q

What happens after a plaintiff establishes a pima facia case?

A

Burden of proof shifts to employer to articulate a legit, non-discriminatory reason for employee’s rejection

62
Q

Disparate Impact

A

Discrimination occurs when employer’s practices, procedures or tests, even though they do not appear discriminatory, adversely impact a protected class (usually unintentionally)

63
Q

Equal Employment Opportunity Commission: EEOC

A

Investigates and attempts to obtain parties’ voluntary consent to an out-of-court settlement, can file lawsuit against employer on behalf of employee

64
Q

What are some pre-employment inquiries that may show intent to discriminate?

A

Whether an applicant is pregnant
Marital Status of applicant
Number/Age of children
Future child bearing plans
Employment status of spouse

65
Q

Is a help wanted seeking “recent college graduates” prohibited by the EEOC?

A

Yes, discourages people 40+ from applying

66
Q

Is an employer relying on word of mouth referrals from its mostly Hispanic work force for recruitment?

A

Yes, if the result is that almost all new hires are Hispanic

67
Q

Sexual Harassment

A

Unwelcome sexual attention (verbal/visual/physical,) unreasonable interfering with employee’s work performance or create a hostile/offensive working environment

68
Q

Verbal/Written Sexual Harassment

A

Commenting on clothing, body, making sex-based jokes, spreading rumors about a person’s sexual life

69
Q

Physical Sexual Harassment

A

Impeding/blocking someone’s movement, inappropriate touching, assaulting

70
Q

Nonverbal Sexual Harassment

A

Looking up and down a person’s body, making derogatory gestures or facial expressions, following a person around

71
Q

Visual Sexual Harassment

A

Displaying or sharing drawings/pictures/emails of a sexual nature

72
Q

Sexual Harassment Employer Liability: Supervisor

A

Strictly liable for harassing conduct that result in tangible employment actions such as discharge, demotion, or undesirable reassignment

73
Q

Plaintiff’s Burden of Proof: Sexual Harassment

A

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

74
Q

Managing Employment Related Litigation Risk

A

Document, provide thorough job description, personnel manual, have employees sign off on policies, give written warnings/performance evaluations, document employee incidents

75
Q

Administrative Law

A

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

76
Q

Federal Administrative Agencies

A

Authorized by Congress to issue rules/regulations that have the same force and effect as statutes (Executive Agencies and Independent Regulatory Agencies)

77
Q

State Administrative Agencies

A

Agencies authorized by State Legislatures to issue rules and
regulations that have the same force and effect as statutes

78
Q

Reasons for Administrative Agencies

A

Specificity, Expertise, Protection, Regulation, Services

79
Q

Functions of Administrative Agencies

A

Rule making, enforcement, adjudicative, advising, investigating

80
Q

Appeal of Administrative Law Ruling

A

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

81
Q

Major Questions Doctrine

A

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.

82
Q

Administrative Agencies and Business

A

Regulation can increase cost of doing business, business must be familiar with regulations and have personnel to ensure compliance, judicial review is limited

83
Q

Protection of Businesses

A

Damages for tortious conduct and breach of contract, equitable remedies, sanctions imposed under criminal wrong

84
Q

Felony

A

A crime that carries the most severe sanction, ranging from 1+ year-life in prison

85
Q

Misdemeanor

A

A less serious crime punishable by a fine or imprisonment for up to one year

86
Q

Petty Offense

A

A subset of misdemeanors comprised of the least serious offenses

87
Q

Actus Reus

A

The performance of a prohibited act

88
Q

Mens Rea

A

With a specified state of mind, or intent, on part of the actor

89
Q

Criminal Act

A

Most acts of commission
Act of omission can be a crime of the person has a legal duty to perform the omitted act

90
Q

Criminal Negligence

A

Defendant take an unjustified, substantial, and foreseeable risk that result in harm

91
Q

Recklessness

A

Consciously disregards a substantial and unjustifiable risk

92
Q

Strict Liability

A

Some federal offenses, environmental/illegal drugs/public health and safety

93
Q

Violent Crimes

A

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)

94
Q

Property Crime

A

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)

95
Q

Public Order Crime

A

Activity considered contrary to public values and morals, victimless crimes (public drunkenness, prostitution, gambling, illegal drug use)

96
Q

White Collar Crimes

A

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

97
Q

Organized Crime

A

Operates illegitimately by, among other things, providing illegal goods and services (gambling, prostitution, illegal narcotics, counterfeiting)

98
Q

Money Laundering

A

Engaging in financial transactions that conceal the identity, source, or destination of illegally gained funds through a legitimate business enterprise

99
Q

RICO

A

Racketeer Influences and Corrupt Organizations Act: prohibits use income obtained from racketeering activity to purchase any interest in an enterprise

100
Q

Defenses to Criminal Liability: Justifiable Use of Force (self-defense)

A

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

101
Q

Defenses to Criminal Liability: Necessity

A

The criminal act was necessary to prevent greater harm

102
Q

Defenses to Criminal Liability: Insanity

A

a person with a mental illness may be incapable of the the state of mind required to commit a crime

103
Q

Defenses to Criminal Liability: Mistake

A

Negates the mental state necessary to commit the crime

104
Q

Defenses to Criminal Liability: Duress

A

Wrongful threat induces another to commit a crime the h/s would not have otherwise committed

105
Q

Defenses to Criminal Liability: Entrapment

A

Individual claims h/s was induced by a police official to commit a crime that h/s would not have otherwise committed

106
Q

Defenses to Criminal Liability: Statute of Limitations

A

Criminal prosecutions must be brought within a specified period of years after the crime

107
Q

Defenses to Criminal Liability: Immunity

A

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

108
Q

6th Amendment Protections

A

Speedy and public trial, impartial jury, be informed of criminal charges, confront witness, compel witness to appear in court, assistance of counsel

109
Q

8th Amendment Protections

A

No excessive bail
No cruel and unusual punishment

110
Q

Exclusionary Rule v. Miranda Rule

A

Miranda rule: statements of suspect normally not admissible in court, public safety exception, must request to exercise right to council

111
Q

Cyber Crime

A

Violation of criminal law that involves knowledge of compute technology for its perpetration, investigation, or prosecution

112
Q

Cyber Fraud

A

Misrepresentation knowingly made to deceive another that occurs online

113
Q

Cyber Theft

A

Theft of data from a computer via the internet (Identity/Password Theft, Phishing)

114
Q

Proactive Steps for Business Owners regarding Cyber Security

A

Passwords, encryption, firewalls
Instruction/Training of employees
Confidentiality agreements regarding programs/data

Legal Environment of Business (2 decks)

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