Hackney Business Law Exam #1

Juris Prudence

Juris = law

Prudence = a cardinal virtue

Juris Prudence = common sense/practical wisdom

4 Jurisprudential Schools

1. Historical

2. Realist

3. Positivist

4. Natural

Aquinas Characteristics of Law

1. Reasonable

2. Publicly Disclosed

3. From Authority

4. For Common Good

Constitution Basic Elements

1789; written by James Madison & adopted from his Virginia Plan.

1. Delegated Powers

2. Shared Powers

3. Police Powers (state powers)

4. Prohibited Powers

Declaration Basic Elements

1776; written by Thomas Jefferson; manifesto

Federalism & Separation of Powers

Tripartite: 3 part government

Executive, Judicial, Legislative.

Bicameral Congress.

Due Process & Types

5th and 14th amendments respectively prohibit the national government and state governments from depriving any person of "life, liberty, or property without due process of law." They also guarantee that all citizens are given the same protections.

Types of Due Process:

Procedural - issues involve an analysis of the procedure required by the Constitution when states seek to deprive people of life, liberty or property.

Substantive - issues involve the states' power to regulate certain activities

14th Amendment

Citizenship Clause, Equal Protection Clause, Privileges and Immunities Clause, Due Process Clause.

Scrutiny Tests:

Rational Relations - basic test; reasonably related

Heightened Scrutiny - basis of sex; substantially related

Strict Scrutiny - basis of race, color, religion, etc.; narrowly tailored

5th amendment

No person held without trial by grand jury

Can't be witness against self

No double jeopardy

DUE PROCESS

Enumerated Power

Powers explicitly stating authority of Congress

(Article I, Section 8)

Types of Law

1. Eternal Law

2. Divine Law

3. Natural Law

4. Human Law

Commerce Clause, Affectation Doctrine, & Transactional Analysis

Commerce Clause - the section of the U.S. Constitution allocating business regulation between federal and state governments

Transactional analysis - Initial analysis of commerce clause, gave narrow view of Government

Affectation Doctrine - expanded the authority of the federal government under the commerce clause

Preemption

Federal Government > State Governments

Yick Wo

act of strict scrutiny

Negative Rights

Bill of Rights as they limit the power of the Government

1st Amendment

-No established religion by Government

-Free exercise of religion

-Free speech

-Free press

-Peaceably Assemble

-Petition the Government

2nd Amendment

Well regulated militia, right to bear arms

3rd Amendment

No soldiers in home

4th Amendment

No unreasonable search or seizures (requires warrant or probable cause)

Exclusionary Rule

dismissed evidence

6th Amendment

Speedy Trial & Confrontation Clause (can confront witnesses)

7th Amendment

Right to jury if issue involves law

8th Amendment

No excessive bail, fines, or cruel & unusual punishment

9th Amendment

All other rights enumerated

10th Amendment

Remaining rights given to states

Penumbral Powers

Powers implied by Constitution

Elements of a Crime

1. Mens Rea (guilty mind)

-Mental Act

-Intent

2. Actus Reus (guilty act)

-Physical act

-Omission

3 types of crime

1. Treason

-Crime against the nation state

2. Felony

-Serious crime punishable by imprisonment and sometimes death

3. Misdemeanor

-Less serious crime punishable by jail time less than one year and/or fines

Manslaughter

killing another human with lower intent

Larceny

(Common law crime)

the wrongful or fraudulent taking of the personal property of another by any person with fraudulent intent

Robbery

(Common law crime)

the taking of person property from the presence of the victim by use of force or fear

Burgarly

(Common law crime)

breaking and entering

Arson

(Common law crime)

willful and malicious burning of another's dwelling (considered a felony if someone is killed)

Riots and Civil Disorders

(Common Law Crime)

Damage to property in the course of a riot or civil disorder

Murder

the unlawful premeditated killing of one human being by another

Rape

nonconsentual sexual activity

Sodomy

sexual intercourse involving anal or oral copulation (removed by many)

Mayhem

rendering someone unfit to give service to the King

Search Warrant

judicial authorization for a search of property where there is the expectation of privacy

3 Tort Theories

1. Intentional Tort - crime

2. Grounded - based on negligence

3. Strict Liability - civil wrong in which there is absolute liability because of inherent danger in underlying activity (ex: explosives); automatically liable if something happens

Tort

Deals with private, nonconsentual relationships (a breach of private duty imposed by the law), only liable if you are negligent

Miranda Warnings

warnings required to prevent self incrimination in a criminal matter

Elements of Prima Facie Cases & meaning

means "on its face" or "at first look"

1. Voluntary Act

2. Breach of duty of care

3. Proximate cause

4. Damage/injury

Res Ipsa Loquitor

The thing speaks for itself

Contributory Negligence

Defense to Negligence

partial fault (ex: passenger failing to wear seatbelt)

Comparative Negligence

Defense to Negligence

each party's negligence is weighted

Assumption of the Risks

Defense to Negligence

assume the risk of doing something (ex: attending an athletic event)

Sovereign Tort Immunity

Defense to Negligence

can only sue the government when they say you can

Proximate Causation

"lack of carefulness"

Assault

Intentional Tort

put someone in fear of immediate battery

Battery

Intentional Tort

nonconsentual touching

False Imprisonment

Intentional Tort

Outrage

Intentional Tort

hate speech related (ex: shaving a Jew's sideburns off, flushing cremated remains)

Trespass

Intentional Tort

interference with property

Types of Defamation

Slander - oral

Libel - permanent nature (written, more serious)

Agency

a FIDUCIARY and CONSENSUAL relationship where an agent can act on behalf of, and subject to, the control of the principle

Consensual

the parties consent to the relationship

Fiduciary

trust duties

Agency vs. Independent Contractor

principle only has control over agent

Express Agency

Type of Agency Authority

Principal tells agent to perform a certain act, agent has express authority to do so, can be given orally or in writing

Incidental Agency

Type of Agency Authority

authority of an agent that is reasonably necessary to execute express authority (ex: principal tells agent to purchase goods w/o furnishing funds to agent, agent has implied incidental authority to purchase goods on credit)

Customary Agency

Type of Agency Authority

"What would attach to a particular agency at particular locale" (ex: agent who has express authority to receive payments from third persons, has implied customary authority to issue receipts)

Apparent Agency

Type of Agency Authority

How do you determine if someone is an agent?

go to PRINCIPLE ONLY

Adverse Acts of Agency

1. Knowledge of the Agent

2. Payments to the Agent

3. Statements to Agent

Fiduciary Duties (not a list)

duties of agent to principal

1. loyalty to principal

2. obedience and performance (obeying law)

3. reasonable care (act with care like a reasonable person)

4. accounting (account for all property or money belonging to principal)

5. information (keep principal informed)

Terminating a Contract

terminates the authority but not the power; principle's job to inform third party

1. death of P or A

2. insanity of P or A

3. bankruptcy of P or A

4. impossibility of performance

5. war

Uniform Durable Power of Attorney

"this power of attorney shall not be affected by subsequent disability or incapacity of the principal"

Respondeat Superior & Scope

means "Let the master answer"

Employer is responsible for the negligent torts of his employee when the act is committed within the scope of employment.

Scope is composed of:

1. Activity - work related?

2. Time - within or close to working hours?

3. Distance - at or close to workplace?

Fully Disclosed

Disclosure of Principle

principal whose identity is made known by the agent as well as the fact that the agent is acting on the principal's behalf; PRINCIPAL IS LIABLE

partially disclosed principle & who is liable?

principle whose existence is made known, but whose identity is not; PRINCIPLE AND AGENT IS LIABLE

undisclosed principle

does not tell agent or for who

negligent hiring

employeer hires someone whose reputation that showed their propensity to misue their given authority, can hire someone if crime is not related to job

negligent retention

keeping employee after discovering dangerous propensity

negligent supervision

obligation to supervise and put systems in place

special agent

authorized by the principal to transact or handle specific business transactions for a LIMITED PERIOD OF TIME (ex: authorized by another to purchase a particular house)

general agent

authorized by principle to transact all affairs in connection with a particular type of business or trade (manager of store)

universal agent

"power of attorney"; authorized by principal to do all acts that can be lawfully delegated to a representative (would be used for someone on military leave)

Attorney in Fact

agent authorized to act for another under a power of attorney

Types of Damages from Liability

1. personal injury

2. property loss

3. economic loss (can't work)

Power of Attorney

written authorization to an agent by the principal