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72 Cards in this Set
- Front
- Back
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Ethics
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Societal standards of fairness, honesty, and justice; a system of right and wrong
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Ethical Relativism
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whether something is ethical depends on one's viewpoint
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Law & Ethics Converge
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(things are both legal/ethical and illegal/unethical)
Ex. Legal/ethical : company declares divident Illegal/unethical: bribery |
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Law and Ethics Diverge
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(things could be legal/unethical and illegal/ethical)
Ex. Legal/unethical: agent acting for undisclosed principle (tells secrets) Illegal/ethical: violation of segregation laws |
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Uniform Commercial Code
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Convergence of law and ethics (code that people in the commercial codes must abide by)
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1. Merchant Provisions
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Merchants held to higher standard of conduct than ordinary buyers/sellers
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2. Good Faith (honesty;fairness)
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Mandated in all contracts for sale of goods
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3. Unconscionability
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judge can refuse to enforce contracts which contain an unconsciounable (shocking to the conscience) clause
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FL Statute(2009) 90.407
Subsequent Remedial Evidence |
Someone's negligence caused harm and AFTER the fact, measures were taken that could have prevented the harm from happening if taken before, these measures cannot be submitted as evidence in court
Ex. slippery floor in grocery store, highway guard rail case |
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Utilitarianism
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the greatest good for the greatest number; judges will rule ethically in favor of this to make sure that decisions are made for the greater good of society
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Last few decades there has been a large growth of administrative agencies due to
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1. impossibility to legislate in detail
2. crowded courts 3. more expertise 4. public protection 5. necessity |
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These administrative agencies function as:
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1. Legislative (rule-making)
2. Judicial (Adjudicating) 3. Executive (Enforcing/Administrating) |
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Legislative Functions (Rule-making/ Government Agencies)
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1. Delegated Legislative Authority: no agency has rule-making authority without delegation of power from government
2. Standards: Legislature must provide agency with standards for rule issuance 3. Opportunity for Public Comment: must be open to the public |
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Judicial Functions: Adjudicating
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(reduce court crowding, Nursing Board, etc.)
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- Administrative hearings
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1. hearing officer presides
2. attorney or lay (not professional) representation (in Florida).. he made reference to a 1980 case but didn't go further in detail about it 3. Final order rule: exhaustion of administrative remedies |
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Executive Functions - Enforcing
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License Disciplinary Proceedings
1. Administrative complaint: someone complains about a violation 2. Formal Hearing/ Informal Hearing (just like court) 3. Recommend Order by Hearing Officer: recommended decision (step five of scenario) 4. Final Order by Agency Head: Actual Decision 5. Appeal to District Court of Appeal: need to know that if someone were to appeal a licensing committee's decision, it would go directly to the District Court of Appeal |
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Scenario
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1. Hospital Patient complaints Nurse Jones stole some of her medication
2. Patient complains to State Board of Nursing (licensing committee for Nurses) 3. Board investigates, finds probable cause and issues administrative complaint charging Nurse Jones with "diverting drugs for personal use"; board seeks revocation of Nurse Jones' license |
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Scenario Cont.
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4. Nurse Jones denies all allegations in complaint. Administrative hearing is held resulting in the issuance of a Recommended Order by the Hearing Officer
5. Recommended Order finds Nurse Jones guilty and recommends $1000 civil penalty; suspension of license for six months; random drug tests for two years 6. HOWEVER, the AGENCY HEAD is the issuer of the final order, (felt penalties weren't strong enough) instead ordered $2500 penalty, suspension for one year, and random drug tests for three years |
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Separation of Powers/ Checks & Balances (3 branches of US gov't)
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Legislative: makes laws as well as veto override of executive branch
Executive: enforces and administers laws as well as vetoes Judicial: has the ultimate power and is in charge of interpreting laws |
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Case: (Supreme Court)
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- U.S. v. Nixon (1974) - Nixon was subject to impeachment for his involvement in the Watergate cheating scandal, considered crucial in limiting presidential power as a precedent
- Clinton v Jones (1997) landmark U.S. Supreme Court case establishing that a sitting President of the US. has no immunity from civil law litigation against him, for acts done before taking office and unrelated to the office (Lewinsky scandal's perjury) - Bush v. Gore (2000) Bush won presidency with Florida election controversy |
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Constitutional Judicial Review
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Determining: whether laws/actions violate Constitution; judicial branches job to check laws (allowed single mothers to be exempt from jury duty but not single fathers)
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Interpreting laws:
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determining the meanings of laws: 9/11 "occurrence" case, as well as the Koikos FAMU shooting case are a few examples
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Interstate Commerce: (Commerce between two or more states)
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The Commerce Clause: when trade occurs between two or more states, congress has the right to control)
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Intrastate Commerce (within the same state)
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Controlled by the states legislature
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Cases (Intrastate Commerce)
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Wickard v. Filburn (1942): Wickard argued that b/c he wasn't selling his wheat he had no effect on commerce, supreme court ruled b/c he wasn't buying wheat he was effecting economy and has to abide by rules of everyone else (taxes)
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Heart of Atlanta Motel V. U.S. (1964)
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Segregation case with interstate black travelers not allowed in hotel (Court ruled they had jurisdiction b/c most travelers were crossing state lines/ motel argued government was violating their 5th amendment rights to select customers)
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Katzenbach v. McClung (1964)
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provide take out to African Americans b/c since most food originated interstate, congress has right to control desegregation of restaurant, *congress has power to regulate state or local activity if such activity "substantially affects interstate commerce"
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Interpreting Constitutional Rights:
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- Constitutional rights aren't "absolutes"(Strozier searched for stolen books, not strip search/ can't say fuck in Miami, illegal to yell fire in theatre)
- Constitutional issues involve a weighing process between competing policies |
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More...
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Constitutional rights are variable from time to time:
- Laws change: Civil rights, abortion, Miranda Rule (read them in the last 14 days you don't need to be read them again) - Constitutional rights protect the minority from the majority *Bill of rights which protect rights from the tyranny of government are not absolute" |
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U.S. Constitution - 14th Amendment:
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-Due Process of Law: must be notified of what government is intending to do with you)
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- Due Process Clause: fundamental fairness required; the courts determine the fairness associated with the being fair in the process of law
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Ex. Three men congregating on the street corner illegal if annoying to others
- word annoying is impossible to rule on so court ruled against the ordinance |
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Equal Protection Clause
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Individious (evil,race,sex) Discrimination is illegal: expectant mother case with single father from Gainesville
- Rational basis test discrimination is illegal: a judicial standard of review that examines whether a legislature had a reasonable and not an Arbitrary basis for enacting a particular statue |
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Commercial Speech (Businesses)
Florida Bar Rule 474 (businesses don't have the same free speech rights as individuals) |
Lawyers cannot send letters to prospective clients for a job unless 30 days after incident (ambulance chasing)
Grippa: tried to regulate commercial speech against the "Bad Ass coffee Co." grippa tried to make them take their names off billboards in tallahassee for indecent purposes (the case was eventually dropped) |
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Constitution of the State of FL. Article 1
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Section 23: Right of Privacy: Every person (excludes companies/corporations) has the right to not be intruded on by the government and live a private life. However we know this is not true and doesn't not include the U.S. government from investigating peoples lives (Patriot Act)
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Civil Offense: In order of proceedings
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1. Wrong against and individual/ group of individuals
2. Plaintiff v. Defendant (to sue) 3. Lawsuit |
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Civil Offense Cont.
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4. Burden of Proof: preponderance of evidence (defendant innocent until proven guilty if they enter a plea of not guilty)
- Reasonable Doubt: Concrete evidence there there is doubt that the person is not guilty, if there is any evidence, the person is not guilty/ juror is only to analyze evidence introduced in trial alone. |
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Civil Offense Cont. 2
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5. Issue: Liability ( the responsibility the defendant has to pay for the offense)
6. Penalty: Always money |
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Criminal Offense: In Order of Proceedings
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1. Wrong against society
2. State v. Defendant (prosecuted by prosecutor, defendant can have a state appointed attorney) 3. Prosecution (instead of lawsuit) 4. Burden of Proof: BEYOND reasonable doubt: reasonable doubt must be more that 50% ( if you have reasonable doubt, defendant not guilty, no reasonable doubt defendant guilty) 5. Issue: Guilty v. Innocent 6. Penalty: Jail, Fine, Death |
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Standard Jury Instructions (Criminal Cases 2000-1)
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Per Curiam: A ruling by a whole jury rather than a judge
Jury is told to refer to Standard Jury Instruction 2.03 (defines pleas of not guilty.) Rewriting of reasonable doubt definition for juries to understand, jury agreed language in original instruction is confusing/archaic was rewritten to protect rights of accused |
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Elements of Crime
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Mens rea: criminal intent (question is how to prove intent)
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1. Insanity:
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M'Naghten rule: right/wrong test, if due to mental disease person cannot distinguish between right/wrong, person not guilty
A. Andrea Yates: Drowned her five kids, only tried on two children's murders B. Insanity can be ruled as temporary due to rage (finds wife with best friend), under the influence (pitcher robbed store b/c he was high) |
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2. Irresistible Impulse:
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Kleptomania: must steal
Pyromaniac : Must light fires - Can be ruled as a disease |
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3. Mistake:
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Case where father shot his son's friend b/c he thought it was an intruder (no Mens rea in this case)
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4. Accident:
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Did not mean to commit crime
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5. Self Defense:
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Later....
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6. Age:
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ruled that anyone under 7 has no mens rea, however five year old girl from Pensacola charged on felony charge, most states limit is 7 but florida can be different
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7. Duress:
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can be no mens rea if someone is coerced or threatened to do crime
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Actus Rea:
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the criminal act. it is assumed that if you have actus rea, mens rea is there too. this is ruled on.
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Florida Statues : Justifiable use of force
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deadly force is allowed when preventing death/great harm to self to prevent felony from occurring..
- Do not retreat law: any person who isn't engaged in criminal activity has right to stand ground and use force to put off attacker - any person entering someone's living space or occupied vehicle is presumed to be doing so to commit crime |
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Forcible Felony:
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treason, murder, manslaughter, sexual battery, carjacking, home-invasion robbery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravating stalking, aircraft piracy, unlawful throwing, placing, or discharging a bomb, attacking a person violently
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Nelson v. Howell (1984)
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- Howell owner of seafood restaurant caught Nelson robbing him, gave him citizens arrest (non-police citizen stopping you from crime when felony committed in your presence)
- Nelson ran and got shot at - court ruled Howell was right in using deadly force to stop him |
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Fleeing felon rule: (Tennessee v. Garner 1985)
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deadly force can only be used if it is necessary to stop the escape of the felon or to stop him from hurting the the office or others
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Breach of peace
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disorderly conduct, drinking/drugs
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Criminal penalties:
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Felony: crime where prison term is more than 1 year.
1. Life: by term of imprisonment for life 2. 1st degree: prison sentence no longer than 30 years, unless specified in which will not exceed 15 3. 2nd degree: no more than 15 years 4. 3rd degree: no more than 5 years |
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Misdemeanors:
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1st degree: no more than 1 year
2nd degree: no more than 60 days, must be definite term *anyone who has been convicted of a non-criminal violation (running a red light) may not be sentence to any term of imprisonment or anything other than a fine or civil penalty |
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Fine for crimes/non-criminal violations shall not exceed:
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Felonies:
- 15000 for life penalty - 10000 for 1st or 2nd degree - 5000 for 3rd degree Misdemeanor: - 1000 for 1st degree - 500 for second degree misdemeanor or non criminal violation (Can be doubled if stated in offense/ may exceed) Court can defer payment if accused cannot pay |
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Florida Statute: Theft, Robbery, and Related Crimes
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Merchandise: personal property, manual delivery, retail sale (merchant is owner,operator, agent or consignee, employee or officer)
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Value of Merchandise
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sale price of merchandise at the time it was stolen or removed
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Retail Theft:
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taking of possession or carrying away (asportation:carrying away) of merchandise/ can tamper with antitheft devices, take shopping cart
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Farm Theft:
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unlawful taking of things being grown or produced on land owned
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Transit fare evasion:
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unlawful refusal to pay fare for transportation upon mass transit vehicle or evade this/ prosecuted for petit theft
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People may:
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see someone shoplifting you can take them into custody and hold them for some time until you get your property back/ face criminal charges, law enforcement officer needs to be called immediately after person is taken into custody
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Leaving...
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the store is not required to be considered shoplifting (case of 4 teenagers who stole sports goods and were carrying them around, PROBABLE CAUSE they were going to steal
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Taking in...
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of such person (who is detained for shoplifting is not unlawful detention or false imprisonment
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Any law officer...
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has the right to imprison anyone who they believe has probable cause of theft from an establishment on or off premises
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Violations involving checks and draft
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check fraud is illegal, as well as writing a check where the funds in the account its tied to has insufficient funds)
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Intentional misrepresentation:
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unlawful for any person to draw any false check (fraud)
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Date on check..
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is date check is payable, avoid check bouncing
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Check bouncing is illegal if:
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person knows (mens rea) their account has insufficient funds at time given check to person who isn't given prior warning
1. violation of 1st degree misdemeanor unless check is $150 or more then FELONY 3rd degree |
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Payment No Defense:
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payment of a dishonored check is not grounds for dismissal of charge,
give someone a $40 bounced check, giving 40 dollars doesn't make the last not an offense |
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Prima facie:
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on its first appearance, at first sight, preliminary in law
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In any prosecution, the making, drawing or delivery of a check which is refused by the drawee because of lack of funds or credit, shall be a PRIMA FACIE evidence of intent to defraud or knowledge of insufficient funds in, or credit with, such bank
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May be liable in a civil action for TRIPLE the amount of check but in no case less than $50, Amount of check + service charge + court costs + Reasonable attorney fees + incurred bank fees = says that in court you are liable for up to 3x amount the frauded check was for
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