Exam 2 Legal Buisness

legislative branch

a branch of government, such as the two houses of Congress—the House of Representatives and the Senate—that passes statutory law

U.S. Constitution

the supreme law of America that contains the entire structure of the federal government, its powers, the powers of the states, and the rights of all citizens

Supremacy Clause

part of the U.S. Constitution that requires that when state and local laws conflict with federal statutes, regulations, executive orders, or treaties, those federal provisions control over the state or local law

Fourteenth Amendment

grants citizens the right to the equal protection of the law

Bill of Rights

the first 10 amendments to the U.S. Constitution, providing individual freedom and protection of individual rights

nexus

a link between people, places, and things (such as a connection between the state and the business being taxed)

police power

the states’ power to pass laws that promote the public welfare and protect public health and safety

preemption

when state and local laws conflict with federal laws, federal laws displace the state and local laws

per curiam

an unsigned opinion that comes from the majority of the court

Procedural due process

required steps of notice and the opportunity to be heard before rights or properties are taken away from an individual or business

just compensation

compensation provided by the government to a property owner for taking that private property for public use or for use in a governmental project\

eminent domain

it is the right of a governmental body to take ownership of a private property for a public use

 

Substantive law

a system of laws that describes rights and responsibilities

Substantive due process

the right to have laws that do not deprive businesses or citizens of property or other rights without justification, clarity, or reason

disparate treatment

distinctions made between groups and individuals that result in differing treatments or rights

equal protection

the constitutional protection offered to U.S. citizens, against disparate treatment

elements

the requirements of proof for crimes

deferred prosecution agreement (DPA)

the negotiated settlements of criminal charges against a corporate defendant

white-collar crime

a crime committed by a person in a high position of authority (such as business and government professionals) during their tenure

crime

an act or an omission that violates the law and results in punishment

mens rea

the mental intent (state of mind) or knowledge of wrong required for committing a crime

actus reus

refers to the physical act of committing a crime

conscious avoidance

a doctrine under which executives cannot “consciously try to avoid knowledge” about the actions and activities of those within the company

theft

 

the action of an employee that expresses the intent to take the property of the employer or the actual taking of the property for permanent use without authorization from the employer

embezzlement

the action of an employee that expresses the intent to take the property of the employer or the actual taking of the property for permanent use without authorization from the employer

search warrant

a judicially issued order to examine home, business, and papers in areas in which there is an expectation of privacy

Criminal fraud

Definition: misrepresentation of information or identity, with the intent to take something (funds or property) from another without that person’s knowledge

 

Sixth Amendment

the right-to-trial protection of the U.S. Constitution; ensures that the criminal proceedings and trials advance in a timely fashion

Fourth Amendment

a provision in the Bill of Rights of the U.S. Constitution that protects against invasions of privacy; it forms the basis for requiring warrants for searches of private property

Fifth Amendment

an amendment to the U.S. Constitution that provides protection against self-accusation; it also guarantees that an accused individual has the right to be heard

Miranda warnings

the advice required to be given to those taken into custody, such as a description of the right to remain silent and the right to have counsel

warrant

a judicial document authorizing detention of an individual for criminal charges and for searches when there is an expectation of privacy

Due process

the right to trial before conviction or some review or procedure prior to loss of rights

initial appearance

the defendant’s first appearance in court to be informed of charges and rights; to set bail and future dates and appoint a lawyer

preliminary hearing

a proceeding that requires the prosecution to establish that there is sufficient evidence to bind defendant over for trial

grand jury

a secret panel of citizens who serve for a designated period of time (usually six months) and act as the body responsible for the review of evidence of crimes; it determines whether charges should be brought and whether the defendant should be held for trial

 

arraignment

the hearing at that trial date is set and plea is entered by the defendant

nolo contendere

 

a plea of no contest where the defendant accepts conviction but does not admit guilt

 

indictment

a document issued by the grand jury requiring the defendant to stand trial

 

plea bargain

term used in criminal proceedings to denote settlement of criminal charges

discovery

a fact-finding pre-trial procedure in which the parties obtain evidence from each other using legal methods

omnibus hearing

the trial court proceeding held before the trial begins in which all the evidentiary challenges can be presented for the judge’s ruling as to the admissibility of the evidence

trial

proceeding in first-level court that goes through the process of hearing witnesses, taking evidence, and reaching a conclusion through a verdict

Strict tort liability

imposition of liability because of harmful results, regardless of the precautions taken, and from failure to provide enough warnings

tort

a wrongful act that imposes legal liability

negligence

Definition: the conduct of omission or carelessness that results in damages or harm to another

Intentional torts

 

a private wrong that involves deliberate actions that results in injury to a person or a property

 

Defamation

 

an untrue or damaging statement made by one party to another about a third party; includes both slander and libel

libel

a written defamation published by oral or written communication that impeaches the honesty, integrity, professionalism, or virtue of another

absolute privilege

 

a defense to defamation, enjoyed in certain contexts or venues

Malice

the publication of information with a reckless disregard for whether it is false or true

slander

an oral or spoken defamation made to another

 

qualified privileges

 

the privileges that provide limited liability for defamation

 

contract interference

a tort where parties are not allowed the freedom to contract without interference from third parties

False imprisonment

the wrongful detention of a person for any period of time against that person’s will; called the shopkeeper’s tort, this occurs as a result of detention by a merchant for a shoplifting accusation

appropriation

a privacy tort that involves the use of a person’s likeness, image, voice, or trademark for commercial gain, without the permission of that person

 

Licensees

category of individual on the land of another that determines level of duty and liability of the landowner; generally consists of those who have an implied invitation such as meter readers and first responders

ordinary and reasonably prudent person

a person exercising a level of care that most others, when faced with the same circumstances, would also do

 

trespassers

category of person on the land of another who has no right or permission to be on the land; landowner’s only duty is to not intentionally injure the trespasser

 

Invitees

category for persons using the land of another that includes those who are there at the express or implied invitation of the landowner (e.g., customers in stores)

proximate cause

the foreseeability requirement of causation

 

contributory negligence

the negligence on the part of a plaintiff that was partially responsible for causing injuries

causation

element of negligence that establishes the connection between the breach of duty and the resulting injuries or damages

assumption of risk

a voluntary subjection to danger or participation in activities that carry inherent danger

 

comparative negligence

a negligence defense that assigns liability and damages in accidents on a percentage basis; it calculates the contribution of both the defendant and the plaintiff toward the accident, thus reducing a plaintiff’s recovery by the amount of negligence contributed to the cause of the accident

Strict liability

an absolute liability for engaging in dangerous activities with risky consequences, regardless of the precautions taken; a standard of liability that requires compensation for an injury regardless of fault or prior knowledge

nuisances

conduct that interferes with the use and enjoyment of others’ properties (such as bad smells and excessive noise)

injunctions

judicial orders that prohibit certain conduct or order certain acts

 

nonattainment areas

 

the areas with existing, significant air quality problems

bubble concept

an environmental protection tool that examines all the air pollutants in the area as if they came from a single source, to check whether a new plant has a net effect on the air in the area

 

effluent guidelines

the ranges of discharges into water, permitted per industrial group by the EPA

conventional

level of emissions controls that uses current best practices as a standard

 

best conventional treatment (BCT)

 

the pretreatment of a conventional pollution by a plant, before its release into the environment

 

nonconventional

pollutants that are neither conventional nor toxic (for example, chlorine and ammonia)

toxic pollutants

the toxins such as lead, mercury, and arsenic that, when released into the environment, cause adverse effects on health

best available treatment (BAT)

 

the highest standard imposed by the EPA with regards to treating a pollutant

Superfund

the funds available for government use to clean up toxic waste sites

community-right-to-know substance

the substances such as asbestos, when used in the construction of buildings, impose a duty on the building owner to disclose their presence to buyers, tenants, and employees