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69 Cards in this Set
- Front
- Back
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Utilitarian Ethics |
John Stuart Mill. A correct decision is one that maximized overall happiness and minimized overall pain (risk-management, cost-benefit analyses). |
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Utilitarian Ethics - Critics |
Not possible to quantify things like happiness. The end justifies the means. Gives bad behavior a pass as long as the end result is "good" |
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Deontological Ethics |
Immanuel Kant. The idea that people should never be treated like commodities, even if a decision would maximize profit, happiness, or another quantifiable measure |
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Stakeholder Model |
The idea that companies have a responsibility to everyone with a vested interested in the organization; from customers to employees, to local communities. Shareholders are not the only ones who need to be satisfied; however, they are stakeholders. |
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Alternative Dispute Resolution (ADR) |
Negotiation Mediation Arbitration Done to avoid litigation, as litigation is costly and time-consuming |
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Negotiation |
Informal resolution of disputes where parties work out their differences |
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Mediation |
A neutral 3rd party helps guide disputing parties toward a voluntary settlement |
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Arbitration |
Neutral 3rd party can make binding or non-binding decisions for the parties involved |
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Trial Courts |
Hears testimony, receives evidence. Applies facts to law. |
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Jurisdiction |
The power of a court to hear a case |
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Subject Matter Jurisdiction |
The power of a court to hear a particular type of case |
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Personal Jurisdiction |
The power of the court to require parties to appear in court. Usually established if: 1. The defendant resides in the same state as the lawsuit 2. The defendant responded to the complaint. 3. A summons is filed properly 4. A long arm statute applies (International Shoe Co. V. State of Washington) |
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Libel |
Written defamation |
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Slander |
Oral defamation |
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Elements of Defamation |
1. A defamatory statement 2. That statement is false 3. That statement is communicated 4. That statement results in injury |
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Slander Per Se |
If someone lies about another's sexual behavior, that they've committed crimes, that they have contagious diseases, that they have poor professional abilities, then damages are presumed. |
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Defamation defenses |
Truth. Opinion. |
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Tortious Interference with a Contract |
1. Contract between plaintiff and 3rd party 2. Defendant knew of that contract 3. Defendant knowingly interfered with the contract to cause a breach or impossibility of performance 4. Injury occurred |
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Privacy Torts |
1. Intrusion: Unreasonable interference with someone's privacy 2. Appropriation/Commercial Exploitation: The use of a person's likeness for commercial gain without authorization |
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Compensatory Damages |
Amount of money that a court believes is necessary to restore the plaintiff to the place they would have been but for the defendant's actions |
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Punitive Damages |
Punishment for defendant's conduct if it was extreme or outrageous. Usually limited under contracts law. |
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Crimes |
Must include the following elements: 1. Actus Reus 2. Mens Rea 3. Causation 4. A concurrence between causation and the physical act 5. In M.P.C. States, a substantial step toward the commission of a crime must take place. |
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Actus Reus |
A voluntary physical act |
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Mens Rea |
A specific or general intent to commit the crime |
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Warrant Exceptions |
Consent. Arrest. Hot Pursuit. Evanescent Evidence. Emergency. Automobile exception. Plain view. Business Inspection. |
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Consent |
Voluntary, knowing/intelligent, lawful access/control. Don't need to inform of right to refuse. |
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Arrest |
Outside of home probable cause. |
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Automobile Exception |
Can search if the officer arrests a person in the car for weapons or contraband in the passenger compartment |
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Plain View |
Police is legally entitled to be there and can see something that is wrong |
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Business Inspection |
Governmental officials can inspect a business without a warrant under certain circumstances |
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Exclusionary Rule |
Prohibits introduction of evidence based on the 4th, 5th, and 6th amendment. Motion to suppress if the warrant was illegal or the arrest improper. Exceptions: evidence obtained independent of the original illegality, acts of free will, inevitable discoveries, police acted in good faith. Harmless error test. The exclusionary rule doesn't apply to grand jury, civil proceedings, or agency rulings. |
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Negligence |
Duty of care. Breach. Factual cause. Proximate/Legal cause. Damages. |
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Duty of Care |
the defendant had a legal responsibility to assist the plaintiff |
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Breach |
the defendant breached/broke their duty by failing to meet their legal obligations |
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Factual cause |
The defendant's conduct actually caused the injury |
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Proximate/Legal Cause |
it was foreseeable that conduct like the defendant's might cause this type of harm |
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Damages |
The harm suffered by the plaintiff, usually compensated through money damages |
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Duty of Care |
Reasonably prudent person for negligence cases. Professionals owe a duty of care proximate to their field of occupation. Good samaritans: if a defendant owed no duty to act, he/she is not compelled to act. If defendant did act, their 'rescue' efforts must be made with reasonable care. |
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Children's Duty of Care |
standard of care is that of a child of similar age, education, intelligence & experience. 'Adult Activity Doctrine' can trigger an adult standard of care. |
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Defenses |
Assumptions of risk Contributory negligence comparative negligence |
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Assumptions of risk |
Knowing, voluntary. |
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Contributory Negligence |
a plaintiff who is negligent recovers nothing |
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comparative negligence |
A plaintiff may recover even if at fault. May be limited in some jurisdictions to less than 50% at fault. |
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Common Law of Contracts |
For a service |
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Goods |
For goods. Governed by UCC. Goods defined as something 'movable' at time of contract. |
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Mixed contract |
governed by primary purpose (service or goods) of contract |
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Bilateral contract |
Both parties make a promise. An exchange of a promise for a promise. |
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Unilateral contract |
An exchange of a promise for an act. (e.g., lost dog reward)
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Elements of a Contract |
Offer Consideration Acceptance Legality Writing |
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Offer |
An expression of a promise, undertaking or commitment, definite and certain in terms, and clearly communicated to the offeree. |
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Consideration |
A bargained for legal exchange for value |
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Acceptance |
Unequivocal and communicated. Common law "mirror image" rule. |
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Legality |
Can the contract be formed? Is the contract illegal, is the party a minor, etc. |
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Writing |
Is it necessary to have the contract in writing? Statute of Frauds. MYLEGS |
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MYLEGS |
contract for Marriage contract that cannot be completed in one Year contract for sale of Land E is for executor. if the executor agrees to pay debts of the estate out of his/her own pocket it must be in writing. Goods. anything $500 and above must be in writing. S for surety. if you sign as surety you must have it in writing. |
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Value |
may be an act or forbearance. |
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Act |
when a party to a contract does something that they are not legally required to do in the first place. An act does not count if the party is simply complying with the law or fulfilling obligations under an existing contract. Pre-Existing Legal Duty Rule. |
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Forbearance |
promising not to do something |
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Adequacy of consideration/peppercorn rule |
Even the tiniest benefit to the plaintiff counts, so long as it has measurable value |
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Legality/Capacity - Minors |
creates a voidable contract if they do not ratify shortly after the age of 18. The contract is voidable by the minor only. This is called disaffirm/disavow. A minor will be required to pay for necessities (e.g., milk). A minor may be required to pay for damages to goods. Under the UCC minors can't disaffirm the contract if the minor sells to bonafide purchaser. |
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Legality/Capacity - Mental Impairment and Intoxication |
A person suffering from mental impairment is unable to understand the nature and consequences of a transaction; creates only a voidable contract. An adjudicated insane person can't contract. Intoxication: Creates a voidable contract, but courts are reluctant to void contracts due to intoxication. |
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Unconscionability |
Often applied to one-sided bargains where one of the parties to the contract had substantially superior bargaining power and can dictate the terms of the contract to the inferior party. |
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Not unconscionable |
If one party merely has desperate/difficult circumstances, the court may not call the contract unconscionable |
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Sale of Goods ($500+) |
Generally not enforceable unless evidenced by a writing signed by the party to be charged (sued). |
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Sale of Goods ($500+) Exceptions |
Specialty Made Goods Written confirmation between merchants unless there is an objection within 10 days of receipt. Admission in court. Partial Payment or delivery |
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Performance not within 1 year |
a promise that cannot be performed within one year is subject to the statute of frauds. The date to determine the agreement runs from the date of the agreement and not from the date of performance. |
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Third Party Beneficiary |
Not a party to the contract but stands to benefit from it. under 'normal' circumstances only parties to a contract get to enforce a contract and/or have benefits from a contract |
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Intended Beneficiaries |
3rd parties whom the first and second parties have designated to receive the primary benefit of the contract. The presumption is that the first and second parties entered into a contract for their own benefit, but a court will enforce an express contract for a third party if that contract confers actionable rights upon the individual or entity as an intended beneficiary. |
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Contract Modification - 3rd Party Rights
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1st and 2nd parties to a contract may mutually alter/eliminate 3rd party rights under a contract before those rights vest. 3rd party rights are said to 'vest' when a third party: 1. discovers a 3rd party contract and assents to it 2. materially alters his/her position upon the promise 3. commences a suit to enforce the promise The power of the first and second parties to modify their duties terminates when the 3rd party materially relies on the promise |
