LAW BUSINESS EXAM 1 STUDY GUIDE JURISPRUDENCE - the way we apply practical wisdom to think about the law; practical wisdom, common sense, one of the four cardinal virtues JURISPRUDENTIAL SCHOOLS: 1. Historical Von Sovigny 2. Positivist Thomas Hobbes 3. Realist Oliver Wendell Holmes Jr. 4. Natural Law Thomas Aquinas (Aristotle Cicero) FEDERAL SYSTEM the system of government in which a central government is given power to administer to national concerns while individual states retain the power to administer to local concerns COMMON LAW the body of unwritten principles originally based upon the usages and customs of the community that were recognized and enforced by the courts -reception statute -uses case law "judge made" -stare decisis "let the decision stand" the court should set the precedent and control the decisions of similar cases in the future NAPOLEONIC CODE Roman civil law; French civil code -top down statutory legislative (not case law) COMMERCE CLAUSE transformed from transactional analysis () into affectation doctrine(congress may regulate interstate commerce) -congress can regulate any activity that affects commerce -shifted balance of power BILL OF RIGHTS first ten amendments to the constitution LAW VS. EQUITY Law tort contract; kings court - Equity bishops court DUE PROCESS the constitutional right to be heard, question witnesses, and present evidence -5th amendment Feds can't deprive you of your rights without due process -14th amendment States can't deprive you of your rights without due process -substantive what is done to you must be fair -procedural how it is done to you must be fair; first you get a notice, then you get a hearing and a trial EQUAL PROTECTION LAW prohibits the government from treating one person differently form another when there is no reasonable ground for classifying them differently -rational relations basic test -heightened scrutiny laws that discriminate sex/gender -strict scrutiny discriminate against race PRIVACY left alone ENUMERATED POWERS congress may only exercise powers that are stated in the constitution PENUMBRAL "umbrella"; covers enumerated powers CRIME a breach of a public duty imposed by law -criminal law involves: crime -civil law involves: contracts (K) and torts ELEMENTS OF A CRIME: -mens rea mental act (intent) -general intent basic intent required for all crime -specific intent more thinking and planning involved; voluntary intoxication, mental cognition -actus rea physical act (omission)
SPECIFIC CRIMES: CONSPIRACY an agreement between 2 or more persons to commit an unlawful act CRIMES RELATED TO PRODUCTION, COMPETITION, AND MARKETING IMPROPER USE OF INTERSTATE COMMERCE shipment of improper goods or the transmission of improper information in interstate commerce SECURITIES CRIMES regulation on the issuance and public sale of stocks and bonds MONEY LAUNDERING the act of concealing or disguising funds RACKETEERING engaging in an illegal business usually run as part of organized crime BRIBERY the act of giving money, property, or any benefit to a particular person to influence that person's judgment in favor of the giver COMMERCIAL BRIBERY when an agent accepts a bribe from another in order to make a decision on behalf of his principal that benefits the party paying the agent EXTORTION an illegal demand by a public officer acting with apparent authority BLACKMAIL extortion demands made by a non-public official CORRUPT INFLUENCE certain practices that exert a corrupting influence on business transactions (ex. political); Foreign Corrupt Practices Act COUNTERFEITING the making, with fraudulent intent, of a document or coin that appears to be genuine FORGERY the fraudulent making or altering of an instrument that apparently creates or alters a legal liability of another PERJURY knowingly giving false testimony in a judicial proceeding FALSE CLAIMS AND PRETENSES FALSE CLAIMS to knowingly and willfully make a false material statement FALSE PRETENSE an intent to defraud; using deception to obtain money or goods UNAUTHORIZED USE OF AN ATM illegally obtaining money from an ATM FALSE INFO ADMITTED TO BANKS making false statements in a loan application BAD CHECKS the use of a bad check is a crime CREDIT CARD CRIMES stealing and/or possession of another person's credit card & using it EMBEZZLEMENT a statutory offense consisting of the unlawful conversion of property entrusted to the wrongdoer (ex. an employee taking his employer's money for personal use) th 4 AMENDMENT no unreasonable searches; curtilege = area within the fence; search and seizure 5th AMENDMENT due process = right to be indicted by a grand jury, can't be tried twice (double jeopardy), can't take life, liberty, or property; prohibition of self-incrimination 6th AMENDMENT confrontation clause and speedy trial EXCLUSIONARY RULE if evidence is illegally seized, it will not be used in the trial against you FRUIT OF THE POISIONOUS TREE DOCTRINE once the search turns illegal, everything else after is not considered evidence MIRANDA WARNINGS warnings required to prevent self-incrimination in a criminal matter TORT a civil wrong that interferes with one's property or person -reasonable man of ordinary prudence (tort standard) INTENTIONAL TORTS: FALSE IMPRISONMENT the intentional detention of a person without that person's consent INFLICTION OF EMOTIONAL DISTRESS tort that produces mental anguish caused by conduct that exceeds all bounds of decency INVASION OF PRIVACY tort of intentional intrusion into the private affairs of another -intrusion into the plaintiff's private affairs -public disclosure of private facts -using another's name, likeliness, or image commercially
DEFAMATION an untrue statement by one party about another to a third party 1. Slander - oral 2. Libel written slander PRODUCT DISPARAGEMENT false statements made about a product or business CONTRACT INTERFERENCE when a third party interferes with others' freedom to contract SPOLIATION OF EVIDENCE permits one party in litigation to recover from the other party that has destroyed or lost evidence TRESPASS an unauthorized action with respect to person or property ASSAULT intentional conduct that threatens a person with a well-founded fear of harm BATTERY the intentional, wrongful touching of another person without that person's consent CLASSES OF TORTS: 1. Intentional (ex. hitting someone in a fight) 2. Negligence (ex. running a red light and hitting another car) 3. Strict liability (ex. contractors using dynamite) . Prudent Behavior
Negligence
Gross Negligence
Reckless
Willful and Wanton Misconduct
Intentional
3 BURDENS OF PROOF: 1. Mere preponderance (51%) 2. Clear, cogent, and convincing (75%) 3. Beyond reasonable doubt (98%) BURDEN OF PROOF in common law; the responsibility of proving a disputed charge PRIMA FACIE basic case TORT OF NEGLIGENCE: 1. Voluntary Act 2. Breach of a duty of care (reasonable man of ordinary prudence) 3. Proximate cause 4. Damage/injury -economic loss -property loss -bodily damage PRIVITY succession or chain of relationship to the same thing or right, such as privity of contract, privity of estate, privity or possession -privity of contract relationship between a promisor and the promisee RES IPSA LOQUITOR "the thing itself speaks"; self-evident DEFENSES TO NEGLIGENCE: 1. Contributory negligence negligence of the plaintiff that contributes to injury and at common law bars from recovery form the defendant although the defendant may have been more negligent than the plaintiff 2. Assumption of the risk plaintiff acknowledges the risks involved in certain activities and releases the defendant form prospective liability (ex. ski lift tickets) 3. Comparative negligence defense that permits a negligent plaintiff to recover some damages but only in proportion to the defendant's degree of fault 4. Immunity governments are usually immune form tort liability SOVEREIGN IMMUNITY DOCTRINE states that a foreign sovereign generally cannot be sued unless an exception to the Foreign Sovereign Immunities Act of 1976 applies
STRICT LIABILITY (ABSOLUTE LIABILITY) civil wrong for which there is absolute liability because of the inherent danger in the underlying activity (ex. the use of explosives) 1. Maintenance of a dangerous condition (on your property) 2. Harboring wild animals 3. Product liability AGENCY LOYLTY: -fiduciary trust relationship -consensual both people in the agency agree to terms -discrete TYPES OF EMPLOYMENT: -agent all risks are assumed within the agency -employment risks assumed under the scope of the employer -independent contractor project manager is not liable for the work of independent contractors TYPES OF AGENTS: -general authorized by the principal to transact all affairs in connection with a particular type of business or trade or to transact all business at a certain place -special authorized to transact a specific transaction or to do a specific act -universal authorized by the principal to do all acts that can lawfully be delegated to a representative HOW TO CREATE AN AGENCY: -express authorization authorization of an agent to perform a certain act -authorization by conduct when the principal places the agent in charge and the agent has "apparent authority" -imposed by law termination by operation of law (insanity, bankruptcy, impossibility of performance, country of principal is at war with that of the agent) AGENCY AUTHORITY: -Express if the principal tells the agent to perform a certain act, the agent has express authority to do so -Incidental authority of an agent that is reasonably necessary to execute express authority (ex. if the principal authorizes the agent to purchase goods but does not provide the agent with the funds to do so, the agent has implied incidental authority to purchase them on credit) -Customary authority of an agent to do any act that, according to the custom of the community, usually accompanies the transaction for which the agent is authorized to act -Apparent appearance of authority created by the principal's words or conduct; agency by estoppel (owner acts in a way that misleads others, owner may be prevented from asserting ownership) ENQUIRY NOTICE - ? FIDUCIARY DUTIES duties performed in order to keep the agency confidential and trustworthy -loyalty agent must remain faithful and not accept any secret benefit -obedience and performance agent must obey all lawful instructions -reasonable care agent must act with the care that a reasonable person would exercise under the circumstances -accounting agent must account to the principal for all property or money belonging to the principal that comes into the agent's possession -information agent must keep the principal informed of all facts relating to the agency that are relevant to protecting the principal's interests
POWER OF ATTORNEY written authorization to an agent by the principal DISCLOSURE OF PRINCIPAL/AGENCY: -Disclosed when the agent makes known the identity of the principal and the fact that the agent is acting on behalf of that principal -Partially Disclosed when the agent makes known the existence of a principal but not the principal's identity -Undisclosed when the third person is not told or does not know that the agent is acting as an agent for anyone else (principal is unknown) WHO'S LIABLE?: -Principal -Agent and Principal (contribution) -Agent and Principal (indemnify) VICARIOUS LIABILITY when the law holds you responsible for someone else's actions; under certain circumstances, the principal may be liable for the torts and crimes of the agent or the employee RESPONDEAT SUPERIOR let master the answer NEGLIGENT ACTS: 1. Negligent hiring an employer may be liable when it is shown that the employer knew, or should have known, that the job applicant would create an undue risk 2. Negligent retention similar to negligent hiring, the employer knew or should have known that the employee would create an undue risk of harm to others in carrying out job responsibilities 3. Negligent supervision principal is directly liable for its negligence in regard to training and supervision of its employees and agents PAYMENT TO AGENT when the third person makes payment to an authorized agent, the payment is deemed made to the principal AGENT'S STATEMENTS a principal is bound by a statement made by an agent while transacting business within the scope of authority AGENT'S KNOWLEDGE principal is bound by knowledge or notice of any fact that is acquired by an agent while acting within the scope of actual or apparent authority -the principal is not charged with knowledge of an agent: 1. when the agent is acting adversely to the principal's interest 2. when the third party acts in collusion with the agent for the purpose of cheating the principal
TERMS CH. 4 FEDERAL SYSTEM - the system of government in which a central government is given power to administer to national concerns while individual states retain the power to administer to local concerns CONSTITUTION - a body of principles that establishes the structure of a government and the relationship of the government to the people who are governed TRIPARTITE - three part division of government LEGISLATIVE BRANCH - congress; makes laws EXECUTIVE BRANCH - president; executes laws JUDICIAL BRANCH - courts; interprets laws BICAMERAL - a two-house form of the legislative branch of government DELEGATED POWERS - powers are expressly granted the national government by the Constitution SHARED POWERS - powers that are held by both state and federal governments
STATE POLICE POWERS - the power to govern; the power to adopt laws for the protection of the public health, welfare, safety, and morals EX POST FACTO LAW - a law making criminal an act that was lawful when done or that increases the penalty when done. Such laws are generally prohibited by constitutional provisions. PREEMPTION - the federal government's superior regulatory position over state laws on the same subject area BEDROCK VIEW - a strict constructionist interpretation of a constitution LIVING-DOCUMENT VIEW - the term used when a constitution is interpreted according to changes in conditions COMMERCE CLAUSE - that section of the U.S. Constitution allocating business regulation DUE PROCESS CLAUSE - in the 5th and 14th Amendments, a guarantee of protection from unreasonable procedures and unreasonable laws QUASI-JUDICIAL PROCEEDINGS - forms of hearings in which the rules of evidence and procedure are more relaxed but each side still has a chance to be heard PRIVLEGES AND IMMUNITIES CLAUSE - a clause that entitles a person going into another state to make contracts, own property, and engage in business to the same extent as citizens of that state CH. 8 CRIME - a violation of the law that is punished as an offense against the state MISDEMEANOR - a criminal offense with a sentence of less than one year that is neither treason nor a felony FELONY - a criminal offense that is punishable by confinement in prison for more than one year or by death or that is expressly stated by statute to be a felony FEDERAL SENTENCING GUIDELINES - federal standards used by judges in determining mandatory sentence terms for those convicted of federal crimes WHITE-COLLAR CRIME PENALTY ENHANCEMENT ACT OF 2002 - federal reforms passed as a result of the collapses of companies such as Enron; provides for longer sentences and higher fines for both executives and companies WHITE-COLLAR CRIMES - crimes that do not use nor threaten to use force or violence or do not cause injury to person or property CONSPIRACY - an agreement between two or more persons to commit an unlawful act RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO) - federal law, initially targeting organized crime that has expanded in scope and provides penalties and civil recovery for multiple criminal offenses, or a pattern of racketeering PREDICATE ACT - a qualifying underlying offense for RICO liability EXTORTION - an illegal demand by a public officer acting with apparent authority BLACKMAIL - extortion demands made by a non-public official FOREIGN CORRUPT PRACTICES ACT (FCPA) - federal law that makes it a felony to influence decision makers in other countries for the purpose of obtaining business, such as contracts for sales and services; also imposes financial reporting requirements on certain U.S. corporations GREASE PAYMENTS/FACILITATION PAYMENTS - legal payments to speed up or ensure performance of normal government duties FORGERY - the fraudulent making or altering of an instrument that apparently creates of alters a legal liability of another UTTERING - the crime of issuing or delivering a forged instrument to another person EMBEZZELMENT - a statutory offense consisting of the unlawful conversion of property entrusted to the wrongdoer COMPUTER CRIMES - wrongs committed using a computer or with knowledge of computers ECONOMIC ESPIONAGE ACT (EEA) - federal law that makes it a felony to copy, download, transmit, or in any way transfer proprietary files, documents, and information from a computer to an unauthorized person
4th AMENDMENT - privacy protection in the U.S. Constitution; prohibits unauthorized searches and seizures SEARCH WARRANT - judicial authorization for a search of property where there is the expectation of privacy 5th AMENDMENT - constitutional protection against self-incrimination; also guarantees due process MIRANDA WARNINGS - warnings required to prevent self-incrimination in a criminal matter DUE PROCESS - the constitutional right to be heard, question witnesses, and present evidence 6th AMENDMENT - the U.S. constitutional amendment that guarantees a speedy trial CH. 9 TORT - a civil wrong that interferes with one's property or person INTENTIONAL TORTS - a civil wrong that results from intentional conduct NEGLIGENCE - the failure to exercise due care under the circumstances in consequence of which harm is proximately caused to one to whom the defendant owed a duty to exercise due care STRICT LIABILITY - a civil wrong for which there is absolute liability because of the inherent danger in the underlying activity, for example, the use of explosives FALSE IMPRISONMENT - the intentional detention of a person without that person's consent; called the "shopkeeper's tort" when shoplifters are unlawfully detained SHOPKEEPER'S PRIVELEGE - right of a store owner to detain a suspected shoplifter based on reasonable cause and for a reasonable time without resulting liability for false imprisonment INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS - tort that produces mental anguish caused by conduct that exceeds all bounds of decency INVASION OF PROVACY - tort of intentional intrusion into the private affairs of another DEFAMATION - an untrue statement by one party about another to a third party SLANDER - defamation of character by spoken words of gestures LIBEL - written or visual defamation without legal justification ABSOLUTE PRIVELEGE - a complete defense against the tort of defamation, as in the speeches of members of Congress on the floor and witnesses in a trial QUALIFIED PRIVELEGE - media privilege to print inaccurate information without liability for defamation, so long as a retraction is printed and there was no malice SLANDER OF TITLE - the malicious making of false statements as to a seller's title TRADE LIBEL - written defamation about a product or service PRODUCT DISPARAGEMENT - false statements made about a product or business CONTRACT INTERFERENCE - a tort in which a third party interferes with others' freedom to contract SPOLIATION - an alteration or change made to a written instrument by a person who has no relationship to or interest in the writing. It has no effect as long as the terms of the instrument can still be ascertained TRESSPASS - an unauthorized action with respect to person or property MALPRACTICE - when services are not properly rendered in accordance with commonly accepted standards; negligence by a professional in performing his or her skill CONTRIBUTROY NEGLIGENCE - negligence of the plaintiff that contributes to injury and at common law bars from recovery from the defendant may have been more negligent than the plaintiff COMPARATIVE NEGLIGENCE - a defense to negligence that allows plaintiff to recover reduced damages based on his level of fault ASSUMPTION OF RISK - defense to tort negligence that established voluntary conduct of plaintiff that resulted in accident or harm; the common law rule that an employee could not recover from the employer for injuries caused by the ordinary risks of employment on the theory that the employee assumed such risks by undertaking the work
CH. 37 AGENCY - the relationship that exists between a person identified as a principal and anther by virtue of which the latter may make contracts with third persons on behalf of the principal AGENT - a person of firm who is authorized by the principal or by operation of law to make contracts with third persons on behalf of the principal PRINCIPAL - a person or firm who employs an agent; the person who, with respect to a surety, is primarily liable to the third person or creditor; property held in trust INDEPENDENT CONTRACTOR - a contractor who undertakes to perform a specified task according to the terms of a contract but over who the other contracting party has non control except as provided for by the contract SPECIAL AGENT - an agent authorized to transact a specific transaction or to do a specific act GENERAL AGENT - an agent authorized by the principal to transact all affairs in connection with a particular kind of business or trade or to transact all business at a certain place UNIVERSAL AGENT - an agent authorized by the principal to do all acts that can lawfully be delegated to a representative INTEREST IN THE AUTHORITY - a form of agency in which an agent has been given or paid for the right to exercise authority INTEREST IN THE SUBJECT MATTER - a form of agency in which an agent is given an interest in the property with which that agent is dealing EXPRESS AUTHORIZATION - authorization of an agent to perform a certain act POWER OF ATTORNEY - a written authorization to an agent by the principal ATTORNEY IN FACT - an agent authorized to act for another under a power of attorney INCIDENTAL AUTHORITY - authority of an agent that is reasonably necessary to execute express authority CUSTOMARY AUTHORITY - authority of an agent to do any act that, according to the custom of the community, usually accompanies the transaction for which the agent is authorized to act APPARENT AUTHORITY - appearance of authority created by the principal's words of conduct CH. 38 ACTION - a proceeding to enforce any right DISCLOSED PRINCIPAL - principal whose identity is made known by the agent as well as the fact that the agent is acting on his behalf PARTIALLY DISCLOSED PRINCIPAL - principal whose existence is made know, but whose identity is not UNDISCLOSED PRINCIPAL - a principal on whose behalf an agent acts without disclosing to the third person the fact of agency of the identity of the principal VICARIOUS LIABILITY - imposing liability for the fault of another RESPONDEAT SUPERIOR - the doctrine that the principal or employer is vicariously liable for the unauthorized torts committed by an agent or employee while acting within the scope of the agency or the course of the employment, respectively