Business Law Exam 1

Front 1

Rule of law

Back 1

Creates predictability, social stability, and foundation. Protects property rights, applies to everyone.

Front 2

2 elements of the Rule of Law

Back 2

Apply to the private marketplace and apply to the lawmakers and the rest of society

Front 3

Substantive and Procedure Law

Back 3

Substantive law defines the rights a person is entitled to and the duties a person is obligated to perform. Procedural law established the mechanisms to enforce the rights and duties established. The what and the how.

Front 4

Civil Law

Back 4

The individual can take action, common law which is based upon case law (rulings on the bench)

Front 5

Criminal Law

Back 5

The government can take action, statutory or written law

Front 6

Public Law

Back 6

Concerns the government in its capacity of representing society, most often criminal law, which is designed to punish

Front 7

Private Law

Back 7

Involves rules and principles that involve persons as private individuals, most often civil law, which is designed to order payment as remediation

Front 8

Due Process amendments

Back 8

5th - federal, 14th state. You cannot deprive a person of life, liberty, or property without due process of law. Must exist in civil and criminal. Guarantees equal protection under the law.

Front 9

4th Amendment

Back 9

Unreasonable search and seizure, warrantless arrests, must have probable cause

Front 10

Jurisdiction

Back 10

Criminal you arrest to obtain jurisdiction, civil can be harder to determine.

Front 11

ADR

Back 11

Alternative Dispute Resolution

Front 12

6th Amendment

Back 12

Right to a speedy trial, right to counsel

Front 13

Negotiation

Back 13

Direct between parties

Front 14

Mediation

Back 14

3rd party brought in to facilitate if negotiation doesn't work

Front 15

Arbitration

Back 15

3rd party like mediation except has the authority to make a binding decision, cannot appeal unless on the basis that the arbitrator has exceeded their power

Front 16

Private Trial

Back 16

Go before a retired judge with authority to hear cases under state law, can be appealed in the judicial system

Front 17

Deposition

Back 17

In person, under oath, to preserve testimony, can cause impeachment when credibility is questioned due to changing stories

Front 18

Interrogatory

Back 18

In writing testimony under oath, can eliminate travel cost if the person is not local

Front 19

Inchohate Crimes

Back 19

Attempt (try to commit the crime, even if youfailed), Conspiracy (making a plan to commit a crime), Solicitation (addinganother person to the crime for help)

Front 20

Agencies

Back 20

Have to have a mission and be funded thru congress. To challenge - have to go thru internal appeals before federal court, but can only appeal on exceeding their scope or violation of due process.

Front 21

Exclusionary Principle

Back 21

Primary criminal and property defense tool, very important to protect your property rights, both personal and real.

Front 22

Property Right

Back 22

Legal right to exclude or keep people from interfering with what you own, including yourself.

Front 23

Civil Burden of Proof

Back 23

Preponderance of evidence, a majority ofreasonable people agree

Front 24

Criminal Burden of Proof

Back 24

Beyond a reasonable doubt, actions of theperpetrator cannot be explained or excused by any other legal defense, noobjective person could come to another conclusion

Front 25

Erie Doctrine

Back 25

There is no federal common law. Erie doctrinestates that the federal court will uphold the state common law of the statewhere the incident has occurred.

Front 26

Philosophy of Stare Decisis

Back 26

It has been decided – means we will leave italone, a precedent was set and everything in the future should be decided thesame way. If there is no applicablecommon law for a set of circumstances, stare decisis does not apply.

Front 27

Corporate liability for the actions of theiremployees, agents and officers

Back 27

A corporation may beheld liable of a criminal act in violation of the Sherman Act (preventsextortion) by the employee in the scope of their employment (within their jobdescription) since the employer and the employee can both benefit from thecrime.

Front 28

Mens Rea

Back 28

State of mind (measured subjectively (actualthoughts and acts) or objectively (what an independent reasonable person woulddo)

Front 29

Actus Reus

Back 29

The act or omission. Most crimes require both this and mens rea, except for strict liability.

Front 30

Objective

Back 30

Civil- reasonable person would think, not whatthe actual person was thinking, negligence/carelessly/or with reason to know

Front 31

Subjective

Back 31

Criminal, literally describes the state of mindthat existed while the crime was committed, intention/knowledge/recklessness

Front 32

Tort

Back 32

A civil wrong or injury outside of contract law forwhich a court will provide remedies in the form of compensatory damages and foreseeableconsequences.

Front 33

Proof of Tort Damages

Back 33

Duty was owed to the defendant by the plaintiff, there was a breach of duty, the breach was the proximate cause of damages, there was actual damages

Front 34

Intentional Tort

Back 34

The feasor acts deliberately, leads to punitive damages (big $)

Front 35

Negligence

Back 35

The feasor acts negligently

Front 36

Strict Liability

Back 36

The feasor is liable without fault. Liability without defense for particularlydangerous activities. The act itself issufficient, assessing the state of mind is not required. Examples – mislabeled products or trafficviolations

Front 37

Compensatory damanges

Back 37

Compensatory damages are designed to compensatethe plaintiff for financial losses incurred as a result of the defendant’stortious actions, such as medical bills or loss of income.

Front 38

Punitive Damages

Back 38

Designed to punish the defendant for their intentional act.

Front 39

Multiple Tort Defendants

Back 39

Acting in concert – defendantscannot sue each other

Actingindependently – can sue other

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Plaintiff can sue either or both defendants.

Front 40

Intentional Torts

Back 40

Assault – the threatof action Battery– physical damage Falseimprisonment Intentionalinfliction of emotional distress – hard to prove

Front 41

Defamation

Back 41

Have to show defamatory statement was made to 3rdparty. Libel is the publication of defamatory material (newspaper, magazines).Slander is defamatory via spoken word. Famous people/political figures cannot recover damages unless they canprove the comments were made with actual malice.

Front 42

Public Nuisance

Back 42

Greater geography, excessive noise, pollutingthe air, enforced by the government and has criminal remedies

Front 43

Private Nuisance

Back 43

Likely your neighbor, burning, dangerousanimals, intent established by creating or maintaining a condition withknowledge that an interference will occur

Front 44

Negligence

Back 44

When a person does something that a reasonable(objective) person would not do, or does not do something that a reasonableperson would do. To recover fornegligence, the plaintiff must show the defendant owed the plaintiff a legalduty to not be negligent, the defendant breached that duty, the negligencecaused the injury, and that the plaintiff suffered actual loss or injury.

Front 45

Sine Qua Non

Back 45

But for this... it would not have happened

Front 46

Substantial Factor

Back 46

If multiple actors are involved in causing aninjury, all are liable even if the individual actions would not have caused theinjury.

Front 47

Foreseeability of harm

Back 47

Determines whether a defendant should be liable for all consequences of the negligent action. This is the primary test to determine if an intervening cause breaks the chain of causation.

Front 48

Contributory negligence

Back 48

Only in 5 states, if you contributed in any way to your injury, you cannot recover damages

Front 49

Assumption of Risk

Back 49

If you know the dangers, you assume the risk

Front 50

Comparative Fault

Back 50

Can reduce the reward by the % the plaintiff contributed to the accident, up to 51-49

Front 51

Premises Liability - Surrounding land and building owners

Back 51

Trespasser – no duty, licensee – reasonable carein conducting property owner’s activities, Invitee – reasonable care to protectthe invitee and give warning of known dangerous conditions.

Front 52

Equal Protection - Strict Scrutiny

Back 52

Used on any law that attempts to classify based on race or ancestry.

Front 53

Equal Protection - Intermediate Scrutiny

Back 53

Used on any law that uses gender or other affect that is important but not a fundamental right.

Front 54

Equal Protection - Rational Basis

Back 54

Addresses the question of whether or not the law is rationally related to a legitimate government interest.