Business Law Exam 2

Front 1

Qualifications to see if a case is Justicable

Back 1

* R - Ripeness - An actual or immediate threat of harm
* A - Abstention - Undecided state law issues
* M - Mootness - If a case is moot, we don't have to hear it under constitutional grounds
* P - Political Questions - They do not handle political questions
* S - Standing - In order to have a standing there has to be harm and redressability

Front 2

Commerce Clause

Back 2

Congress is the only one allowed to regulate interstate and foreign commerce

Front 3

State Action

Back 3

State interference with Federal system

Front 4

Preemption

Back 4

When the federal government trumps the state laws

Front 5

Dormant Commerce Clause

Back 5

Congress is silent and the states decide to regulate

Front 6

Qualification needed to act on Dormant Commerce Clause

Back 6

* They are non-discriminatory against out of state interests
* Undue burden

Front 7

Privileges and Immunities Clause

Back 7

(This does not apply to corporations or non-U.S. citizens) One state cannot discriminate against citizens of another state on basic economic rights

Front 8

When can commercial speech be suppressed?

Back 8

If it is false or misleading and or illegal

Front 9

When can political speech be suppressed?

Back 9

Cannot be suppressed even if it is misleading and illegal

Front 10

Whats are Obscenities and when can they be suppressed?

Back 10

"I know it when I see it but I can't define it" and it can be suppressed; however obscenities are weighed differently in different areas. Think of the nude dice billboard in Las Vegas.

Front 11

Prior Restraint

Back 11

Any government restrictions in advance of publication

Front 12

Content Neutral

Back 12

When the authrotiy does not care what you are going to do they just care about other considerations that can follow like safety

Front 13

License in terms of prior restraint

Back 13

Look at what you are going to say and decide whether or not you can talk

Front 14

Vagueness in Speech Law

Back 14

Vagueness is when you cant ban something because the law would be to vague (banning offensive language).

Front 15

Overbreadth

Back 15

Overbreadth is where you regulate beyond what is necessary.

Front 16

How to deal with content based and content neutral speech restraints

Back 16

Content Based - Strict Scrutiny Test
Content Neutral - Time, place, and manner

Front 17

Establishment Clause needs to change all of the following in order to sue for religious offenses:

Back 17

* Secular Purpose - Not specifically relating to religion or to a religious body
* Secular Effect - Effect is neutral on the people
* No undue entanglements

Front 18

Free Exercise Clause

Back 18

Exercise your religion freely

Front 19

Smith Test

Back 19

Look at the motivation of the law, was it meant to interfere with a particular religion or not? If so, the federal government would strike it down

Front 20

Equal Protection Clause

Back 20

Have to treat all the people the same

Front 21

Strict Scrutiny Test

Back 21

The government must prove the measure is necessary to further a compelling interest with no less restrictive alternative. The government is taking your fundamental rights but because they have no other alternative.

Front 22

Intermediate Scrutiny Test

Back 22

Government must prove the measure is substantially related to an important interest on age or gender

Front 23

Rational Basis Test

Back 23

The plaintiff has to prove the measure being challenged is not rationally related to any legitimate interest on economic or social welfare situations

Front 24

Procedural Due Process

Back 24

Government cannot take your life, liberty, or property without a court hearing

Front 25

Economic Regulation on Due Process

Back 25

Using the Rational basis test the government will pay you if they take away your property (Alcohol store in school zone)

Front 26

Fundamental Rights on Due Process

Back 26

Using the strict scrutiny test to appeal the taking of a right (Making abortion clinics be on the level of hospitals)

Front 27

A statute must contain the following:

Back 27

A name
A purpose
Its functions

Front 28

Explain the Notice and Comment System

Back 28

* Notice of the Proposed Rule
* Comment Period - Designed to allow the public to make their opinions known on the proposed rule
* Final Rule - Explaining why this is a good rule and why they need to do it

Front 29

Steps to a Prosecution of a Business:

Back 29

* Make a formal complaint
* Attempt to agree on a settlement (The agencies do not want to shut down the business because they want you to keep paying sales tax)
* Consent Decree - Like a plea bargain where you have some sort or agreement. Nolo decree means "no contest" aka accepting the charge
* Penalties - Fines, injunctions, corrective advertising, and repayments to buyers
* Hearing - Always have the right to due process
* Appeal - To the federal courts

-Also note, an Administrative Law Judge Handles cases in agencies (immigartion as an example)

Front 30

Mensrea

Back 30

The guilty mind, knowing what you're doing is wrong

Front 31

Actusreus

Back 31

The guilty act, such as pulling the trigger

Front 32

Part of Concurrence

Back 32

When the point of the guilty mind meets the guilty act

Front 33

Omission to Act

Back 33

Decide not to help in a situation. This can be penalized if both:

1. Legal Duty to act
2. Can physically perform the act

Front 34

Examples of Legal Duty to act

Back 34

* By contract (Lifeguard)
* By Statutes (Paying Taxes)
* Based upon relationship (Feeding your children)
* Creation of Peril (Building a pool without a fence)
* Assumption of care (Not changing bed sheets at retirement home which results in bed sores and medical injuries)

Front 35

Causation

Back 35

The victims injury must be caused by the defendants actions

Front 36

Hastening the intent

Back 36

Set up a crime to occur but stop short of completing it and somehow the crime completes anyway. (Pouring gas all over the house to burn it down but decide not to light the match and leave but lightning strikes it and it burns down)

Front 37

Transferred Intent

Back 37

Attempted to kill someone but accidentally killed someone else (Shoot the gun at someone and miss, the bullet rickashayed off metal and kills someone else)

Front 38

Intervening Acts of a 3rd Person

Back 38

When is is foreseeable that someone tried to help but it ended in more deaths, the original criminal will be liable for all the injuries (someone tries to take the gun away from a bank robber and it shoots and kills all the bank tellers; the bank robber is liable for all the deaths)

Front 39

Felony

Back 39

One or more time in prison

Front 40

Misdemeanor

Back 40

Less than a year or a fine only

Front 41

Examples of A-list crimes

Back 41

* Attempt - Making a substantial but unsuccessful effort to commit a crime
* Solicitation - A person who asks someone to commit an illegal act
* Accomplice
* Conspiracy

Front 42

Examples of B-List crimes

Back 42

* Murder
* Manslaughter

* Voluntary - An intent to kill usually with a heat of passion (Finding your spouse with someone else so you shoot them)
* Involuntary - There was no intent to kill someone but due to reckless actions someone died (Run a stop sign and kill a kid)

* Larceny - Taking of someones property
* Embezzlement - Dishonestly withholding assets for the purpose of conversion (theft)
* Arson

Front 43

Burden of Proof

Back 43

"Beyond any reasonable doubt"

Front 44

Exclusionary Rule

Back 44

Doctrine used to suppress evidence that was obtained in violation of the defendants rights under the 4th and 5th amendments

Front 45

Standing

Back 45

A personal right was violated

Front 46

4th amendment protects what?

Back 46

Prevent unreasonable search and seizure and:

Front 47

You need a search warrant if you have:

Back 47

* Governmental Conduct - Employees hired under the government
* Reasonable expectation of privacy

Front 48

Steps to getting a warrant

Back 48

* Probable Cause is needed

* Credible heresay is credible for a probable cause

* Warrant must be precise on:

* The address
* The items they are trying to seize (usually choose small items because they can search through more items due to the size)

* Neutral and Detached Majistrate - The person who reviews the warrant and either signs it or denies it
* Execute the warrant

Front 49

Warrant Exceptions

Back 49

* Automobile
* Plainview
* Consent:

* Voluntary
* Intelligent

* Hot Pursuit & Disappearing Evidence
* Search Incident to a lawful arrest
* Stop and Frisk

Front 50

5th Amendment protects you against what?

Back 50

Privilege against self incrimination

Front 51

What are the correct steps to an arrest following the 5th Amendment?

Back 51

* Government Conduct
* Custody - Not free to leave

* The warnings should take place right now (Miranda Rights)

* Interrogation - Any conduct that the police should know would get a statement

* You need both custody and interrogation to take away self incrimination rights

Front 52

The 14 amendment protects you from?

Back 52

A statement against yourself is only admissable if it was volunatry . This protects you from water boarding and other means of getting a confession out of you

Front 53

The 6th amendment protects you against?

Back 53

Guarantees your right to confront witnesses

Front 54

Craig Rule

Back 54

Allows video witness to be used only on cases for child abuse and neglect. One cannot do video testimony internationally because they cannot swear under oath and the defense cannot question the defendant back

Front 55

TORTS

Back 55

Used to compensate those who have suffered a loss or an injury by those who have done an unlawful act
There are 2 notions:

* Wrongs
* Compensation

Front 56

Battery

Back 56

* Must be unpermitted and intentional
* Must be offensive or harmful
* Must be bodily contact

Front 57

Assault

Back 57

* Must be unpermitted and intentional
* Act causing a reasonable apprehension of battery

* Swinging at somebody and missing is assault
* The person being attacked has to see it coming

Front 58

False Imprisonment

Back 58

* Must be unpermitted and intentional
* Act causing a reasonable apprehension of confinement
* The person being locked up must be aware they are confined

Front 59

Shop Keepers Privilage

Back 59

Allows companies, disney/airports/casinos/etc, to confine people in their own holding facilities. They need the following:

* Reasonable Grounds
* Reasonable Manner
* Reasonable Period of time

Front 60

Emotional Distress

Back 60

* Must be unpermitted and intentional
* Extremely outrageous conduct causing severe mental distress

* Usually need to have gone to see a doctor and have been given a medication to help with depression

Front 61

Trespass to land

Back 61

* Must be unpermitted and intentional
* Intrusion on land

* Your right to land could be taken away. Professor asks you to leave class and you refuse you are trespassing. Owner of apartment tells roommate to leave and he or she refuses, that person is now trespassing the land.

Front 62

Two types of Defamation

Back 62

* Libel - Written
* Slander - Spoken

Front 63

Needed to file for Defamation

Back 63

* Statement - The person has to know it is a false statement
* Publication - Communication between two people or more
* Injury - Person who the statement is about is injured financially or in another way where it can be measured to give compensation
* Malice (For celebrities or politicians) - Have to show proof that the defamation was used to purposefully hurt him or her

Front 64

Defenses against intentional TORTS

Back 64

* Consent
* Self Defense of yourself, others, and/or property
* Necessity
* Discipline

Front 65

To prove negligence, you must prove the following:

Back 65

1. Duty of care - The defendant has a legal duty to protect the plaintiff against an unreasonable risk of harm
2. Breach of the duty
3. Causation
4. Damages - Plaintiff has to suffer actual harm to himself or his property that is measurable and compensable in money damages

Front 66

Reasonable Person standard of care

Back 66

The Reasonable Person requires that they have the same physical characteristics as the defendant and the reasonable person has average mental abillity

Front 67

Professional Standard of care

Back 67

This requires that they have the knowledge or skill of a member of the profession in good standing in a similar local

Front 68

To who do people have a duty of care towards to avoid negligence?

Back 68

All foreseeable plaintiffs within the zone of danger

Front 69

Per Se Breach of Duty

Back 69

The unexcused violation of a statute that results in an injury

Front 70

Res Ipsa Loquitur Breach of Duty

Back 70

The Inference of negligence in the air. Must have both of the following:

* Must show the accident causing the injury would not normally occur unless someone was negligent
* The defendant was responsible for causing the accident

Front 71

Actual Causation (Causation in Fact)

Back 71

"But For" Test for direct causation. For example, But for your tailgate you wouldnt have hit my car

Front 72

Proximate Causation

Back 72

There is a reasonable relationship between the plaintiffs injury and the defendants conduct

Front 73

Defenses against Negligence (Each State is one or the other, cannot be both)

Back 73

* Contributory Negligence - If the plaintiff is one percent contributorily negligent, they are barred from recovery
* Comparative Negligence - Portions damages based on respected degrees of fault
* Assumption of Risk - If you voluntarily risk yourself to a risk of harm, you cannot sue

Front 74

Abnormally Dangerous Activities Liability

Back 74

Doesnt matter how careful you are, if someone is injured, you are liable (Example: Storage of explosives, crop dusting, etc). Fireworks is the exception, fireworks is always negligence

Front 75

Liability on wild and domestic animals

Back 75

Wild - Automatically liable for whatever the animal does

Domestic - One Bite Rule: The animal gets one bite and after that it is your responsibility to protect everyone from it

Front 76

Defense against Strict Liability

Back 76

Assumption of Risk

Front 77

Chattel

Back 77

Every property that is not land (your pens, pencils, shirts, etc)

Front 78

Liability Lawsuits

Back 78

* Negligence
* Representation Theories
* Intentional
* Strict Liability
* Implied Warranties

Front 79

Manufacturing Defect

Back 79

When a product was dangerous beyond the expectation of the ordinary consumer because of a departure from it's intended design

Front 80

Design Defect

Back 80

Plaintiff has to show a reasonable alternative design where a less dangerous modification or alternative was economically feasible. If it is foreseeable then you cannot sue for defect

Front 81

Defenses against Product Liability

Back 81

* Misuse or abnormal use - When the defendant could not anticipate or warn against something. In other words, it was unforeseeable by the company to use it in that way and they didn't warn them.

* Contributory Negligence - You have a hand in your own damages

* Assumption of Risk - If you knew it was risky but did it anyway, then you are liable

Front 82

Foreign Natural Test

Back 82

Food must be wholesome and free from foreign objects

Front 83

Dram Shop Law

Back 83

The person who serves alcohol is liable for the actions of the consumer after they leave the bar or location