Business Law Exam 1 Content

Chapters 1-6

Administrative Agency

A governmental body created by legislation empowered to make and enforce rules and regulations.

Administrative Law

The rules and regulations created by the Federal and State administrative agencies.

Case Law

Appellate court decisions based on custom and usage and prior decisions.

Common Law/Judge-Made Law

The body of law deriving from judicial decisions, rather than from statutes or constitutions.

Constitution

The fundamental law that establishes the government; limits what government can and cannot do; and states the underlying principles to which the government will conform.

Funeral Service Law/Mortuary Law/Mortuary Jurisprudence

That branch of law which relates to matters concerned with the disposal of the dead and regulation of funeral directors, embalmers, and funeral establishments.

Law

Governmental rule prescribing conduct and carrying a penalty for violation.

Ordinance

Law enacted by a local unit of government.

Police Power

The inherent power of a government to make reasonable laws to protect the safety, health, morals and general welfare of its citizens.

Rules and Regulations

Laws created by an administrative agency within its jurisdiction.

Stare Decisis

The principle that the decision of a higher court should serve as a guide or precedent and control the decision of a similar case in the future.

Statutes

Laws which are enacted by legislative bodies.

Sources of Funeral Service Law

Constitutions, statutory laws, administrative laws.

6 Primary Sources of Law

Federal/state constitutions, federal/state statutory laws, municipal ordinances/local laws, case law, common law, administrative law.

Powers in the U.S. Constitution and granted to the 3 branches of government

Serve as the foundation on which individual codes, laws, rules, and regulations are promulgated.

Promulgated

To make known or public.

Writing Laws

Passing laws by voting on them and establishing them.

Further Defining Laws

Challenging them in court.

Enforcing Laws

Achieved through police/law enforcement.

Interpreting Laws

Judicial decisions.

U.S. Constitution Authority

Superior to all other sources of federal and state regulations and may only be superseded by an amendment.

State Constitutions

Provide state laws, rules, and regulations that are superior to all other sources in the same state and may be superseded only by the U.S. Constitution.

Executive Branch

Writes administrative laws/Code of Federal Rules (CFRs), administrative agencies, enforces administrative laws.

Legislative Branch

Writes statutory law/US Codes (USC).

Judicial Branch

Interprets statutory law, writes case law, appellate courts.

Statute

Law enacted by a legislative body at any level of government.

Federal Statutory Law

Written by Congress, begin as bills.

U.S. Congress: Senate

Comprised of 100 members, 2 from each state.

U.S. Congress: House of Representatives

Comprised of 435 members based on population.

Congress

Members are elected by citizens of their home state and sent to Washington D.C. to represent them.

Federal Legislative Bills

Bills passed by Congress are sent to the president to be approved/vetoed. Approved bills become statutory law/US Code/USC/Codes. Vetoed bills may become law if Congress gets the necessary number of votes.

Federal Statutory Law: Funeral Service

Written and passed by Congress. Granted the FTC the authority to prevent unfair methods of competition, gave rise to the Funeral Rule.

FTC Funeral Rule

The single most important federal legislation to everrrrrr affect the funeral service industry in the United States.

10th Amendment

Grants states police power and authority to write laws.

Contract Law

Encompasses the origination, enforcement, and ultimate enactment of all legal agreements.

Contract

Agreements the law will protect. Ex: Statement of Funeral Goods and Services Selected.

Probate Law

Process where courts legally recognize a person’s death and oversee the payment of a deceased person’s debts and distribution of their assets. The court’s role is to protect creditors and beneficiaries of the state, not the executor of the will.

Ordinances/Local Laws

Laws passed by a municipal governing body. Ex: zoning, building, safety.

7 Sources Applied to Case Law Decision-Making

Written briefs, sworn testimony, legislative records, administrative agency records, prior rulings/decisions of a higher court, adhering to the principle of Stare Decisis, existing common law rulings/decisions/opinions.

Case Law Decision-Making: Written Briefs

Narratives and summaries from the parties involved.

Case Law Decision-Making: Sworn Testimony

Evidence given by a witness who’s made a commitment to tell the truth. If they lie, they can be charged with perjury.

Perjury

Intentional false oath in official proceeding.

Case Law Decision-Making: Legislative Records

Often contains insight on the intent and purpose of lawmakers that prompted them to write the relevant statutory law under review.

Case Law Decision-Making: Administrative Agency Records

Often contains background information on the reasoning/motive behind rules and regulations under review. They look at the “spirit” the law was written in because it will always have unintended consequences.

Case Law Decision-Making: Prior Rulings & Decisions of a Higher Court

Similar matters serve as an example to resolve future similar cases, case precedents.

Case Law Decision-Making: Adhering to the Principle of Stare Decisis

Decisions of a higher court should serve as a guide or precedent and control in the decision of a similar case in the future.

Case Law Decision-Making: Existing Common Law Rulings/Decisions/Opinions

Referencing law deriving from judicial decisions rather than statutes or constitutions.

Federal Court System Levels

U.S. District Courts, U.S. Courts of Appeal, U.S. Supreme Court.

State Court System Levels

Trial Courts, Appellate Courts, State Supreme Courts.

Bodies of Common Law

Criminal and civil law.

USC/US Code/Codes

Statutory laws from the legislative branch.

CFR/Code of Federal Rules

Administrative laws from the executive branch.

Administrative Agencies can issue:

Formal rules, guidelines, decisions, (advisory) opinions.

Third-Party Caskets

Caskets purchased from an entity other than the funeral home that is providing all other goods and services for the funeral.

FTC Advisory Opinions: Third-Party Caskets

Purchase, delivery, use. Funeral homes cannot keep a consumer from purchasing a third-party casket, client must sign waiver indemnifying funeral home liability, must accept third-party delivery and cannot charge for the disposal of packaging or assembly, client is not required to be present for inspection, must provide church trucks.

Criminal Law

Protects society as a whole, protection of the public at large.

Civil Law

Provides remedies for an individual that has been injured/harmed.

Police Power: Criminal Law & Statutes

Initially passed by legislative branch, enforced by executive branch, interpreted/adjudicated by the judicial branch.

Functions of Criminal Law

Gives fair notice of unacceptable conduct, defines legal parameters for arrest/prosecution, sets penalties, promotes correction/rehab programs, serves as a deterrent, prevents crime.

Crimes

Offenses for which a person may be punished by a period of imprisonment or incarceration in a government facility.

Types of Crimes

Felony, misdemeanor, petty offense.

Penitentiaries

Jail facility operated by the federal government, felony crimes.

Prisons

Jail facilities operated by the state government, felony crimes.

Jail/Lockup

Jail facilities operated by the county or municipal government, felony crimes.

Arrested for a Criminal Offense?

Fingerprints, mugshot, blood/saliva sample (DNA profile).

Criminal

Label given to those convicted of a criminal offense. Not permitted to own firearms, engage in certain occupations, or obtain a passport, social stigma, renting homes.

Felony

Serious offense punishable by imprisonment for over 1 year in state prison.

Misdemeanor

Less serious crime, punishable by a fine or imprisonment for less than a year in a local facility.

Unclassified Misdemeanor

Default classification in several states.

Petty Offenses

Non-criminal offenses that include violations and traffic infractions. No mugshot, DNA sample, or fingerprinting. not a crime/does not make you a criminal.

Petty Offenses: Traffic Infractions

Usually punished with fines, followed by suspension of driving privileges.

Petty Offenses: Violations

Sub-class of petty offenses such as disorderly conduct, harassment, trespassing, loitering. Punishments include fines, community service, restitution (when applicable), minimal number of days in jail although it is not the norm for first time offenders and adolescents.

Civil Law System

Adversarial, judge/judicial official moderates between 2 opposing parties. Common civil complaints include contracts, property, tort offense.

Tort

A private or civil wrong against a person or their property other than by breach of contract for which there may be action for damages.

Intentional Tort

When an individual knowingly and intentionally engages in conduct with the intended result that another will suffer some form of damage or loss.

Negligent Torts

When an individual carelessly or negligently engages in conduct that results in unintentional damage or loss to another. potential sources include negligence, dereliction of duty, inattentiveness, etc.

Strict Liability Torts

Individual or entity that may be held liable for their conduct without the need to prove the act was either intentional or negligent, often associated with product liability.