USI Business Law Exam 2 (Carol Jansons)

punitive damages

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

special duty of due care

1. professionals
2. landowners

stare decisis

let the decision stand

Bills become laws by?

both houses have to pass the bill for it to become a law. Then it is sent to the president to approve.

Why are bills proposed?

New issue- society finds new worry
unpopular judicial ruling- previous bill is miss used/ interpreted by lower courts and needs to be amended
criminal law - citizens must know these rules in advance

Process of getting Title IIV of the Civil Rights Act of 1964 passed after president proposed it-

1. House judiciary committee
2. Full House
3. Senate Judiciary
4. Full Senate
5. Conference Committee
6. house and Senate
7. President

What part of Title IIV of the Civil Rights Act of 1964 was amended in full senate-

Job test amendment added- nothing in this statute is meant to prevent an employer from job aptitude testing if the test is not based on discriminatory values

conference committee job-

Examine the difference between the initially proposed bill and the new bill after it makes it through all houses in order to create a compromise between the two.

Parts of statutory interpretation

1. plain meaning
2. Legislative history and intent
3. Public policy

congressional override

power to pass legislation over a president's veto, 2/3 majority in both houses after pres. veto.

to create a new rule is to

promulgate it

agencies promulgate two types of rules

1. legislative
2. interpretive

Adjudication for agencies

is the hearing or judgment for an agency

limits on agency's power

1. statutory
2. political
3. judicial
4. informational

information control

1. FOIA
2. Privacy Act

exemption to FOIA

1. National Security 2. Internal agency personnel rules 3. Information specifically exempt from disclosure by another law 4. Trade secrets 5. Internal agency memorandum 6. Personal privacy 7. Law enforcement investigation 8. Federally regulated bank information 9. Oil, gas and we'll data

individuals laws

first 10 amendments - bill of rights

supremacy clause

Article VI of the Constitution, which makes the Constitution, federal statutes, and treaties supreme over state laws when the national government is acting within its constitutional limits.

presidential appointment

nominates head of most administrative agencies

1st amendment (Religion)

1. establish
2. exercise

Procedural Due Process

procedural laws that protect the rights of individuals who must deal with the legal system

14th Ammendment (1868)

granted citizenship to all persons born or naturalized in the United States—including former slaves—and guaranteed all citizens "equal protection of the laws."

Economic and social regulation cases

Minimal scrutiny— "rationally related to a legitimate goal"

Gender

Intermediate scrutiny— "substantially related to important government objectives

intentional tort

A tort committed by one who intends to do the act that creates the harm.

negligent tort

occurs when the defendant fails to act in a responsible way and thereby subjects other people to an unreasonable risk of harm

slander

spoken defamation

public personalities

Receive less protection from defamation
Can win a defamation case only by proving actual malice by the defendant (knew it was false or wreck less disregard for the truth)

privilege

defendants receive greater protection in situations where it is important they speak freely

False imprisionment

o Requires
- Intentional restraint
- Without reasonable cause
- Without consent

- Intentional infliction of emotional distress (IIED); (emotional injury)

o Requires
- extreme and outrageous conduct
- Serious emotional harm

battery

- intentional touching of another person in a way that is harmful or offensive (to a reasonable person)

compensatory damages

A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.

punitive damage guidlines

- Reprehensibility of the conduct
- Harm and damage ratio
- Difference between the award and other similar cases

Business torts

- Tortious interference with a contract
- intentional interference with the plaintiff contracts & a 3rd party

Negligence

careless neglect, often resulting in injury

five element of negligence

1. Duty of Due Care
2. breach
3. factual cause
4. proximate cause
5. damages

Duty of Due Care

Each of us has a duty to behave as a reasonable person would under the circumstances

general duty/ standard

act as a reasonable person

defective products

When a product does not do what is intended and causes harm

- to win this type of case a plaintiff must only show that the defendant manufactured or sold the product that caused harm

Common Law

Judge made law; sum of all cases decided by the appellate courts

precedent

an earlier court decision that is regarded as an example or guide to be considered in other cases.

Bystander rules

You have no duty to assist someone in peril unless you created the danger

special relation doctrine (bystander rule amended)

You have no duty to assist someone in peril unless you have a special relation to them.
- Duty to assist a child
- Duty to assist a spouse
- Duty to assist an employee if you are an employer

Congress made up of

1. House of representatives ( 435)
2. Senate (100)

who can originate a statue

either house of congress

statute

also called a bill

Veto

president rejects a bill

Can Congress undo a court interpretation of constitution?

- Congress cannot undo a court interpretation of the Constitution, but can undo a poor verdict based on a statute

Title IIV of the Civil Rights Act of 1964- presented by Kennedy

prohibits discrimination based on race, sex, orientation, gender, disability.

Plain meaning rule

statues words have an ordinary meaning in society they will be applied

Legislative History and Intent

If the language is unclear, the court must look deeper; propose a question

Public policy

if legislation is unclear they rely on what is the best for society and the public.

Case examples of statutory interpretation

Ex: Griggs v Duke Power (1971); employees with high school education, standardized test, Test has to be business related and a "business necessity"

Ex: Worlds Cove v Antonio (1989); (Changed standard from case above) the employer has to show its test serves "Legitimate employment goals"

Enabling Legislation

A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created.

Agency Types

1. Executive agency
2. Independent agency

Executive agency

An administrative agency within the executive branch of government. At the federal level, executive agencies are those within the cabinet departments (FBI,IRS: single head)

independent agency

federal board or commission that is not part of any cabinet department (governing body not a single head)

Duty of agencies

to create new rules

Legislative rule by agency

o Like a statute
o Drafted and interpreted by federal agencies

Interpretive rule by the agency

- do not change laws; they are the agency's interpretation of what law already requires

How are rules made?

Informal- "notice and comment"; publish rule, public comments, rule decided
formal- Publish, hearing, response, Re- publish

Agency Investigation

Administrative agencies conduct investigations, inspections, subpoenas, without search warrants to gain knowledge

subpoena duces tecum

a court order to appear and produce documents or records

limits to agency's investigation

the information must be relevant, not be unreasonably burdensome, not be privileged

agencies adjudication verdict

- heard before an ALJ (no jury)
- can appeal

statutory control

requires an agency to use formal rule making to investigate or control certain issues.

Administrative procedure act

part of statutory control that imposes additional controls by requiring basic fairness in areas not regulated by enabling legislation.

political control

The President has control over agencies through political pressure and through nominations of agency heads.
Congress controls the budgets of agencies. They can eliminate funding for any program or an entire agency.
Congress can amend enabling legislation to place limits.

judicial review

review by the US Supreme Court of the constitutional validity of a legislative act.

Standard of Review

The amount of deference an appellate court gives to the determinations made by a lower court. (fact and Law)

Freedom information act (FOIA)

1966 law that allows citizens to obtain copies of most public records

Privacy act

A law passed in 1974 requiring government files about individuals to be kept confidential.

Articles of Confederation

A weak constitution that governed America during the Revolutionary War.

constitution

-Drafted in 1787
-Balance between state versus central power
-Balance between government control and individual liberty
- Originally silent about citizens' rights

Separation of powers

article 1 - created congress (leg branch)- lawmaking power
article 2- created office of president (exec branch)- enforcing laws
article 3-(supreme court) judicial branch- interpretation of laws

Commerce Clause

The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.

interstate commerce

congress may regulate economic activity taking place between two or more states

The "dormant" or "negative" aspect of the Commerce Clause

a state statute discriminating against interstate commerce is almost always unconstitutional

executive branch powers

Appointment
legislation
foreign policy

presidential legislation

propose and veto bills

presidential foreign policy

Appoints ambassadors, Signs treaties, Sign executive agreement
- cannot declare war

Judicial power

1. adjudicating civil and criminal cases
2. judicial review - not granted in constitution (Marbury vs madison)

Kennedy vs Louisiana

death penalty act expanded but does not include child rape

Judicial Activism vs. Judicial Restraint

Judicial activism is where judges make policy decisions and interpret the Constitution in new ways. Judicial restraint is where judges play minimal policy-making roles, leaving policy decisions to the other two branches.

Constitutionally Protected Rights

The basic rights and freedoms protected by the U.S. Constitution and its amendments apply to all individuals in the United States regardless of citizenship status and corporations

establishment clause

Clause in the First Amendment that says the government may not establish an official religion. (separation of religion and state)

free exercise clause

First Amendment requirement that law cannot prevent nor penalize free exercise of religion

1st amendment (speech)

No law can restrict your freedom to speak your mind including symbolic conduct (display flags)

political speech

political speech is protected Unless it is intended and is likely to create imminent lawless action

commercial speech

Advertisements and commercials receive less First Amendment protection, primarily to discourage false and misleading ads.

Test to see if it can be regulated:
1. substantial intrest in regulating speech
2. speech restriction directly adbances this intrest
3. the regulation restricts no more speech than necessary

aka ; government may restrict speech if the rules are reasonable and directly advances a legitimate government goal

obscenity

not protected by freedom of speech

Fifth Amendment

A constitutional amendment designed to protect the rights of persons accused of crimes, including protection against double jeopardy, self-incrimination, and punishment without due process of law.

2 steps for procedural due process

1. government taking liberty or property?
2. if so how much process is due?

what must a procedural due process have?

a neutral fact finder

substantive due process

Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; limits what a government may do.
ex: right to marry, to parent, to contract, travel

Taking Clause (5th ammendment)

Government cannot take your property fro public use without just compensation; can take property on behalf of private developers

eminent domain

Power of a government to take private property for public use.

Equal Protection Clause

14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination

equal protection clause applies to government classification of citizens and cooperations

1. economic and social reg
2. gender reg
3. race, ethnicity, fundamental rights