Saunders Business Law Midterm

Henry de Bracton

Established precedence - court cases that have already been determined. Common Law says that you should follow precedent.

Shire Reeves

Top law enforcement official who came before the sheriff position was created

Tithing

every freeman belonged to a group of 10 freemen. If anyone injured someone outside of the tithing, all ten members would be forced to pay.

Vicarious Liability

Business partnerships use the same concept of collective liability. If one partner is irresponsible, it puts everyone else's jobs at risk.

Baron Montesquieu

came up with the idea of the branches of government

John Locke

believed people had the rights to life, liberty, and the pursuit of happiness.

Thomas hobbes

skeptical of the government having too much power especially in the government choosing other government members.

Criminal law

prohibits certain kinds of behavior for the benefit of society

Criminal law burden of proof

prosecution shows guilt beyond a reasonable doubt

civil law

regulates the rights and duties between parties

civil law burden of proof

preponderance of the evidence

style of case

identifying the plaintiff and defendant

citation

where to find copy, what court decided, when it was decided

Legal issue

what court is deciding

holding

court's answer to a legal issue

rationale

court's reason for holding

dissenting opinion

judge disagrees with the holding

concurring opinion

judge agrees with the holding, but for a different reason

pocket veto

A veto taking place when Congress adjourns within 10 days of submitting a bill to the president, who simply lets it die by neither signing nor vetoing it.

fillibuster

a tactic for defeating a bill in the Senate by talking until the bill's sponsor withdraws it (IN SENATE)

vote of cloture

someone calls for end of debate and immediate vote. 60 members of senate must agree, otherwise there's a fillabuster

plain meaning

literal wording of the bill

Legislative history

what debate was when passing the bill

Public Policy

how bill is consistent with other laws

executive orders

Formal orders issued by the president, can only can be issued to carry out already existing laws

Separation of Powers

constitutional division of powers among the legislative, executive, and judicial branches

Incorporation clause (Bill of Rights applied to the states through the 14th Amendment):

means congress's laws can affect states to keep them from infringing on people's equal protection and due process

1st Amendment

* Symbolic speech covered
* Can still regulate the time, place and manner of speech
* Obscenity is not protected free speech
* Commercial speech - can be regulated more (FCC)
* Defamation is not protected free speech
* Action/speech that creates an imminent threat of danger is not protected

5th Amendment - Due Process

* Procedural Due Process (procedures for academic dismissal or dismissal from a government job)
* Takings clause (imminent domain)

Substantial Effect Rule

congress can make laws for states on anything that has a "substantial effect" on interstate commerce.

equal protection clause minimal scrutiny

economic group

equal protection clause intermediate scrutiny

gender

equal protection clause strict scrutiny

race/ethnicity

Which circuit of Appeals is the state of Tennessee?

6th circuit

writ of certiorari

a party's request for the court to hear their appeal

Current chief justice

John Roberts

First black justice

Thurgood Marshall

First female justice

Sandra Day O'Connor

Complaint

a formal notice that a lawsuit is being brought

Summons

a notice directing someone to appear in court to answer a complaint or a charge

Answer

Procedurally, a defendant's response to the plaintiff's complaint. (within 20-30 days)

interrogatories

written questions to other side which they have to answer in writing

deposition

testimony under oath outside of court

Request for Production of Documents

a method of discovery whereby one party asks the other to provide documents for the requesting party's review

voir dire

choosing jury members

right to jury trial

7th amendment

hearsay

information received from other people that one cannot adequately substantiate; rumor.

best evidence rule

The requirement that the original copy of a written agreement be submitted into evidence

arbitration

Alternative to court, neutral arbitrator makes legally binding decision that can't be appealed, no jury

mediation

Outside of court, mediator can try to help both sides reach an agreement

felony

a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death.

misdemeanor

minor crime

Actus Reus

guilty act

Mens Rea

guilty mind

entrapment

police in disguise can arrest you for committing a crime, but you have to cross the line on your own.

Defense of Insanity

people who have mental diseases or disorders should not be convicted if they do not know what they are doing or if they do not know the difference between right and wrong.

larcency

trespassory taking of personal property with intent to steal

fraud

deception of a person for the purpose of obtaining money or property

wire fraud

crimes involving the use of television, radio, or telephone to obtain property by deceit

mail fraud

crimes involving the use of mail to obtain property by deceit

insurance fraud

Filing a false insurance claim in order to obtain money

medicare fraud

Providing false information to claim medical reimbursements beyond the scope of payment for actual healthcare services rendered.

arson

malicious use of fire or explosives to damage or destroy real estate or personal property

embezzlement

fraudulent conversion of property already in the defendant's possession

RICO

using two or more racketeering acts to accomplish any of the following goals: (1) investing or acquiring legitimate businesses with criminal money; (2) maintaining or acquiring businesses through criminal activity; or (3) operating businesses through criminal activity.

patriot act

This law passed after 9/11 expanded the tools used to fight terrorism and improved communication between law enforcement and intelligence agencies

4th amendment

no unreasonable searches and seizures

5th amendment

no self-incrimination / due process (Miranda warnings)

6th amendment

right to an attorney if could face prison

8th amendment

cruel and unusual punishment / no excessive bail

what is a tort?

Violation of duty imposed by civil law

slander

spoken defamation

libel

written defamation

what's needed to prove defamation

Defamatory statement; False; Communicated; and Injury to reputation

* Opinion cannot constitute defamation
* Must show malice as to public figures
* Need only show negligence for private individuals

false imprisonment

The intentional restraint of another without reasonable cause (note shoplifting cases)

Intentional Infliction of Emotional Distress

extreme or outrageous conduct that causes serious emotional harm.

Battery

the intentional touching of an individual in way that is unwarranted or offensive.

Assault

doing some act to make a person fear imminent battery.

Trespass

Intentionally entering land that belongs to someone else or remaining on land after being asked to leave.

Conversion

Taking someone else's property without consent.

Tortious interference with contract

exists if the plaintiff is able to establish the following four elements:


1. there was a contract between the plaintiff and a third party
2. the defendant knew of the contract
3. the defendant improperly induced the third party to breach the contract or made performance of the contract impossible
4. there was injury to the plaintiff

privacy tort

protects plaintiff's mental/emotional well-being

commercial exploitation

prohibits the use of someone's likeness or voice for commercial purposes without permission

compensatory damage

to get plaintiff back to where they were before injury

Single Recovery Rule

requires a court to settle the matter once and for all by awarding a lump sum for past and future expenses

punitive damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.

duty of care

defendant has legal responsibility to the plaintiff

breach

defendant failed to meet legal obligations

Factual Cause

defendant's conduct caused injury

Foreseeable Harm

foreseeable conduct might cause harm

Injury

plaintiff has actually been hurt

landowner duty to trespassers

only to avoid intentional conduct

landowner duty to licensee

duty to warn of known dangers

landowner duty to invitee

duty to avoid negligence

licensee

a person on another's land for their own purpose but with the owner's permission

invitee

A person who has a right to enter another's property because it is a public place or a business open to the public

Res Ipsa Loquitur

the facts imply that the defendant's negligence caused the accident. Only applies when:


1. defendant had exclusive control of the thing that caused harm
2. the harm normally would not have occurred without negligence
3. the plaintiff had no role in causing the harm

assumption of risk

a person who voluntarily enters a situation that has an obvious danger cannot complain if injured

contributory negligence

old rule that if plaintiff was at all at fault for what happened to them then the case is dismissed

Comparative fault

new rule. Defense that the plaintiff was also partially responsible for what happened to them. Court decides what percent fault of each party and reduces penalty to defendant by that percentage