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BUSN LAW EXAM 1
| Term | Definition |
|---|---|
| What makes us moral creatures | We are rational, thinking, and knowing creatures |
| Types of Law | Eternal Law Divine Law Natural Law Human Law |
| Eternal Law | How everything works together |
| Divine Law | Gods 10 Commandments |
| Natural Law | How humans participate in Enteral Law |
| Human Law | Law enhanced by human politics |
| The Jurisprudential Schools | Historical - Law expresses the experience of ppl Realist- focus on the law as it actually exists in practice, rather than how it exists in books. Positivist - Gives up freedom for security Natural Law - that unjust law is no law at all |
| Federal System | Where the National Gov't has the power to deal with national concerns and state government focuses on local issues |
| Separation of powers | Legislative: Make laws Executive: Enforce Laws Judicial branch: Interpret laws |
| Powers of the Constitution | Enact legislation and declare war, the right to confirm or reject many Presidential appointments, and substantial investigative powers. |
| Federal Gov. | Delegated |
| State Gov. | Reserved |
| We're a federal system, meaning... | We have states with different systems of laws |
| Penumbral rights | Unnamed rights; Not specified laws like privacy that came from Roe V. Wade |
| Enumerated Rights | Written specified rights such as speech, press, assembly, search and seizure; rights in the constitution (1-8) |
| 4th Amendment | The right to not be searched unless there is a warrant. In your house is safest |
| 5th Amendment | Due process. No person shall be convicted of crime without a trial. |
| 6th Amendment | The right to a speedy and public trial |
| Commerce Clause | The power to regulate commerce with foreign nations, Indians and the States. |
| Due Process | designed to protect citizens from actions taken by state government, counties, towns, and cities. |
| Due Process 14th | Equal Protection under the law |
| Due Process 5th | No person shall be convicted of crime without a case. |
| Judicial Tests for Interpretation of the 14th amendment Equal Protection. | Rational Basis: the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest Heightened Scrutiny: (basis of sex) used in sex discrimination cases Strict Scrutiny: (basis of race color religion, age) used in c |
| Wickard v. Filburn | Congress may regulate the activities of entities totally apart from interstate commerce, if those activities affect interstate commerce. |
| Preemption | Federal Government's superior over state law on the same subject area. When a direct conflict exists between federal and state statutes, federal law prevails. |
| How has the constitution been changed the most | Judicial branch because some of these consequences could not of been seen in their time, and must be dealt with now. |
| Common Law Felonies | Murder Rape Manslaughter Robbery Sodomy Larceny Arson Mayhem Burglary |
| Elements of a Crime | Mental State- Mental act/Intent Action/omission - Physical Act or Omissions |
| Intentional Act | Volitional act directed toward an illegal purpose |
| Criminal Intent | Criminal negligence, general intent, specific intent |
| Types of Crimes | Treason: Crime against the state Felony: jail >1 yr Misdemeanor: jail<1 yr |
| Tort | A breach of a private duty imposed by the Law |
| Types of tort liabilities | Intentional Tort (often crimes) Tort based on negligence Strict liability in Tort |
| Intentional Tort | civil wrongs resulting from intentional conduct Assault-put in fear with the anticipation of battery; No contact necessary Battery-intentional touching of another person without consent False Imprisonment-intentional detention of person without consent |
| Prima facie | Tort of Negligence. every cause of action needs to have facts to support cause of action for it to be negligence Voluntary Act: not intentional Breach of duty: not being careful Proximate act/ causation: Who is paying Damage/ injury |
| Res Ispa Loquitor | The thing speaks for itself |
| Wrongful interference w/ contracts | contract interference–tort in which a third party interferes with others’ freedom to contracts |
| false imprisonment | intentional detention of a person without that person’s consent; called the shopkeeper’s tort when shoplifters are unlawfully detained. |
| Shopkeeper's Privilege | Right of store owner to detain a suspected shoplifter based on reasonable cause for a reasonable time for the purpose of determining whether they have shoplifted. |
| intentional 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. |
| defamation | untrue statement by one party about another to a third party |
| slander | defamation of character by spoken words or gestures. |
| libel | written or visual defamation without legal justification |
| absolute privilege | complete defense against the tort of defamation, as in the speeches of members of Congress on the floor and witnesses in a trial. |
| qualified privilege | 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 | 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 | tort in which a third party interferes with others’ freedom to contract |
| trespass | 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 |
| contributory negligence | negligence of the plaintiff that contributes to injury and at common law bars recovery from the defendant although the defendant may have been more negligent than the plaintiff |
| Respondeat Superior | Let master answer. Form of vicarious liability |
| Defenses of Negligence | Contributory Negligence Comparative Negligence Assumption of Risk Sovereign Immunity |
| Comparative Damage | tort principle used by the court to reduce the amount of damages that a plaintiff can recover in a negligence-based claim. Negligence % x Damage award = Net award |
| Tort Theories | Intentional tort Negligence: every cause of action needs to have facts to support cause of action for it to be negligence Strict liability: a civil wrong in which there is absolute liability because of the inherent danger in the underlying activity |
| Intentional Tort | usually crimes; civil wrongs resulting from intentional conduct; Criminal |
| Agency | A consensual relationship where an agent can act on behalf of a principal and bind the principal to a contract w/ a 3nd party Most of the time is employed, makes contracts on your behalf with third parties |
| Employment | control what you do how you do it and provide you the tools to do it. 1. Control work space, 2. Provide tools, 3. Set work hours, 4. Compensation normally based on work time, 5. Control and supervise work |
| Independent Contractor | result orientated, works on his own time 1. Focuses on the completed task, 2. Set your own work hours, 3. Provide own tools, 4. Controls work space, 5. Determines and controls manner of performance, 6. compensation based on completion of project |
| Types of Agents | Special General Universal |
| Special Agent | authorized by the principal to transact or handle specific business transactions for a limited period of time |
| General Agent | authorized by principal to transact all affairs in connection with a particular type of business or trade |
| Universal Agent | "power of attorney" Authorized by principal to do all acts that can be lawfully delegated to a representative. |
| Ratification | The action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid. |
| Who is responsible for proving agency | 3rd person is to ask principle Are you an agent How much authority do you have |
| 4 types of agent authority | Express Incidental Customary Apparent |
| Termination by Act of Parties | Parties of agency have the right to terminate agency when agent is wrongfully terminated, party might have a claim of damages |
| Termination by Operation of Law | Insanity of either agent or principal Bankruptcy of either Impossibility of performance State wars between principal's and agent's nations |
| Disclose of Principal | Disclosed Principal - Discloses agency and principal Partially Disclosed - Discloses agency but not principal Undisclosed - Does not disclose either (Last two, agent and principle are liable) |
| Scope of Employment | Activity Time Distance |
| Defense of Intentional Torts Exceptions | Negligent Hiring Negligent Retention Negligent supervision |
| Negligence Supervision | Obligation to supervise and put systems in place. Typically happens with embezzlement. |
| Negligence Retention | keeping the employee after discovering some dangerous propensity - tendency to act in a particular fashion |
| Negligence Hiring | If employer knew job applicant would create undue risk of harm. Or has a criminal record. Can hire if crime is not related to job |
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