LES 305 EXAM 2

Absolute Privilege

A defense to defamation; a protection given to legislators and courtroom participants for statements made relating to the proceedings; encourages people to come forward and speak without fear of liability.

Actus Reus

The criminal act or conduct required for proof of a crime.

Assault

fear of an imminent battery.

Assumption of Risk

A defense to a negligence suit that prevents an injured party from recovering if the defendant can show that the injured party recognized the risk and voluntarily accepted it.

Battery

a harmful or offensive touching.

Bill of Rights

The first ten amendments U.S. Constitution.

Can you have Battery without Assault?

Note that you can have an assault without a battery and a battery without an assault. These are the generally accepted legal definitions. However, some criminal statutes use these interchangeably. Some sates refer to sexual assault, when they are punishing a battery.

Checks and Balances

Each branch has some ability to limit the powers of the other branches

Commerce Clause

Provision in the U.S. Constitution that allows the federal government to regulate commercial activities with an impact on interstate commerce and foreign commerce.

Commercial Speech

Speech by businesses used to promote the business. Advertising is an example.

Comparative Negligence

A defense to a negligence lawsuit that allocates imposes liability in proportion to fault when both the plaintiff and defendant were negligent.

Conscious Avoidance

Term used to apply to officers or managers of a company who try to avoid criminal liability by deliberately avoiding information.

Contributory Negligence

A defense to a negligence lawsuit that is a complete bar to recovery when the injured party contributed to his or her own injuries.

Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM)

Federal law that deals with those who use unsolicited e-mails for purposes of advertising.

Corporate Political Speech

Term given to speech of business related to political candidates or issues; given First Amendment protection.

Crime

A wrong against society that carries penalties of imprisonment or fines or both.

Criminal Fraud

When the perpetrator intentionally makes false statements to the victim to obtain his money or property or some other advantage.

Difference between fraud and misrepresentation

Note that the difference is the intent. The difference between the two is that to prove fraud, you must show an intent to give false information, so as a legal matter, it is more difficult to prove

Disparate Treatment

In discrimination law, the application of different rules or standards to people of different races, genders, or national origins.

Embezzlement

When an employee steals funds, property, or services from his employer.

Eminent Domain

The taking of private property by a government entity for a public purpose, with compensation paid to the owner.

Equal Protection

Constitutional right of all citizens to be treated in the same manner. Each person has the same rights regardless of sex, race, religion, or national origin.

Executive Branch

The portion of the federal government that consists of the President and the administrative agencies; it enforces the laws.

False Imprisonment

The intentional tort of detaining someone against that person's will.

Fifth Amendment

Portion of the Bill of Rights of the U.S. Constitution providing protection against self-incrimination and ensuring due process.

Fraud

intentionally making a false statements or representation that the victim relies on to his or her detriment and suffers damages as a result.

Grand Jury

Special group of jurors established to determine if sufficient evidence is present in criminal cases to support criminal prosecutions.

Health Insurance Portability and Accountability Act of 1996 (HIPAA)

Federal law that provides protections and procedures for patient privacy.

Indictment

Formal criminal charges issued by the grand jury.

Intentional Infliction of Emotional Distress

Intentional tort in which the defendant engages in extreme and outrageous conduct causes severe emotional distress.

Judicial Branch

The branch of the federal government that consists of all levels of federal courts. Its function is to interpret the laws.

Just Compensation

Principle that requires the government entity taking private property to pay the owner a fair amount.

Legislative Branch

At the federal level, consists of the Congress (the Senate and the House of Representatives) and is the branch responsible for making laws.

Mens Rea

Mental intent or state of mind required for the commission of a crime.

Miranda Warnings

Statement required to be given to individuals when taken into custody to alert them to their right to remain silent, the fact that statements can be used against them, their right to an attorney, and the right to an appointed attorney if they cannot afford one.

Misrepresentation

making a false statements or representation that the victim relies on to his or her detriment and suffers damages as a result.

Negligence

An accidental wrong committed by oversight or failure to take precautions or corrective action.

Negligence Tort

Tort of accidental wrong committed by oversight or failure to take precautions or corrective action.

Nexus

Connection; a term used in constitutional analysis of the authority to tax; there must be a sufficient connection between the business and the taxing state.

Nolo Contendere

A "no contest" plea; the charges are neither denied or admitted.

Ordinary and Reasonably Prudent Person

Standard used for determining the level of care required in any given situation.You are liable for negligence if someone is injured when your level of care falls below this standard.

Plea Bargain

A negotiated settlement of a criminal case prior to trial.

Police Power

The authority given to states to regulate the health, safety, and welfare of their citizens.

Preemption

Provides that federal law will override conflicting state law as long as preemption was intended by the federal government or where the federal regulation is so pervasive that it prevents state regulation.

Procedural Due Cause

Constitutional protection that requires the government to give notice and the opportunity to be heard before it takes action against a person or business.

Product Disparagement

Making false statements about a product.

Proximate Cause

One of the standards used to determine whether the defendant's negligence caused the plaintiff's injury. Look at whether the defendant should have reasonably foreseen the general consequences or type of harm suffered by the plaintiff.

Qualified Privileges

A defense to defamation available to the media that permits retraction and no liability so long as the information is not printed or given with malice or with reckless disregard for whether it is true.

Search Warrant

Judicially authorized document allowing the search of individuals' or businesses' premises.

Separation of Powers

Authority for various governmental functions is divided among the three branches of government. No branch may take the power granted to another branch.

Shopkeeper's Privilege

A defense to the tort of false imprisonment for storeowners; allows reasonable detention of shoppers upon reasonable suspicion of shoplifting.

Sixth Amendment

Amendment of the U.S. Constitution that guarantees the right to a jury trial in criminal cases.

Strict Tort Liability

Liability without fault.

Substantive Due Process

Constitutional protection of the liberties of individuals.

Supremacy Clause

The U. S. Constitution is the supreme law of the land and any law the conflicts with the Constitution will be void.

Tort

Civil intentional wrong or negligence.

Tortious Interference with Contract

Conduct by one party that results in another's breaching her contract with a third party.

U.S. Constitution

Creates the federal government's structure and protects private citizens' rights from government interference.

Unauthorized Appropriation

The use of someone's name, likeness, or voice without permission for commercial advantage.