Business Law Exam 3

administrative agency

an authority of the government, other than a legislature or a court, created to administer a particular law

delegation of powers

the constitutional right of Congress to authorize government agencies to perform certain legal duties

enabling statute

legislative enactment granting power to an administrative agency

administrative law

rules and regulations established by administrative agencies to execute the functions given them by Congress or the president; also the law that governs how agencies must operate

rulemaking

in administrative law, the procedures that agencies must follow when issuing rules to interpret or enforce the statutory authority they were granted by Congress

regulations

a rule or order, having legal force, issued by an administrative agency; the act or process of controlling by rule

agency rule

in administrative law, a rule issued by a regulatory agency under its powers granted by Congress and subject to procedural requirements that detail the legal obligations of affected parties

interpretative rules

statements issued by an agency to provide its staff and the public with guidance regarding how an agency sees a legislative rule or a statute in practice; these may be advisory or binding

procedural rules

the process that an administrative agency must follow for its actions to be valid

self-reporting

the requirement under many laws that one subject to the law must volunteer certain matters, including violations, that have occurred to the relevant regulatory agency

subpoena

an instrument (a writ) that directs the person receiving it to appear at a specified time and place to testify or to produce documents

adjudicatory hearing

in administrative law, a formal process involving a regulatory agency and the private parties involved in a complaint

administrative law judge

a civil service employee of the agency, usually a staff attorney, presides over the hearing

judicial review

an external check on agency power

Procedural requirement: Jurisdiction

the complaining party may seek judicial review only in courts that have power to hear the case

reviewable

the ability for the decision of a court or an agency to be appealed to a higher court or administrative level

standing

the right to sue in a particular court

ripeness doctrine

concerns whether an agency action is final so as to allow judicial review

exhaustion doctrine

requires a party to complete all agency appeals procedures before turning to a court for review

arbitrary and capricious

an abuse of discretion

nutrition labeling

by statute, nutritional facts labels must list the percentage supplied required in one day of human nutrients based on the average 2,000-calorie-a-day diet

prescription drugs

drugs that could be obtained only with permission of a physician

Kefauver Amendment

requires the FDA to approve drugs based on their proven effectiveness—not just on their safety

learned intermediary doctrine

the rule that a physician or other qualified medical professional will be held liable for misapplication of a prescription medication if ordered for a use not recommended by the producer, who is relieved of liability in such instances when a patient is injured by the medicine

consent decree

a judgment entered by consent of the parties and approval of a court, whereby the defendant agrees to stop alleged illegal activity without admitting guilt or wrongdoing

deception

in consumer protection law, a claim, practice, or omission likely to mislead a reasonable consumer and cause the consumer to suffer a loss

unfairness

a business practice causes harm that consumers cannot reasonably avoid

advertising substantiation program

requires advertisers and advertising agencies to have a reasonable basis before they make claims

trade regulation rules

administrative rulings by the Federal Trade Commission or other agencies that hold certain practices to be illegal or create standards that must be met by sellers of certain products or services`

Code of Federal Regulations

the codification of the general and permanent rules and regulations (administrative law) published in the Federal Register by the executive departments and agencies of the federal government

Regulation Z

a rule issued by the Federal Reserve Board to implement the Truth-in-Lending Act requiring systematic disclosure of the costs associated with credit transactions

debt collection agency

a business that is paid to or buys the right to collect the debts owed by consumers to a business

electronic fund transfer

monetary transactions made electronically, usually by telephone or computer

tort

an injury or wrong committed with or without force against another person or a person’s property; a civil wrong that is a breach of a legal duty owed by the person who commits the tort to the victim of the tort

negligence

the failure to do something that a reasonable person, guided by the ordinary considerations that regulate human affairs, would do or the doing of something that a reasonable person would not do

due care/ordinary care

the degree of care that a reasonable person can be expected to exercise to avoid harm reasonably foreseeable if such care is not taken

omission

a failure to do something, especially a neglect of duty; leaving something out that may be critical to a decision

gross negligence

a conscious and voluntary disregard for the need to use reasonable care, likely to cause foreseeable injury or harm to person, property, or both

causation

the causing or producing of an effect; in law, something that may be related to legal consequences

res ipsa loquitur

“the thing speaks for itself;” given the facts presented, it is clear that the defendant’s actions were negligent and were the proximate cause of the injury incurred

Cause in fact

established by evidence showing that a defendant’s action or inaction is the actual cause of an injury that would not have occurred but for the defendant’s behavior

sine qua non

“without which not;” an indispensable thing; something on which something else relies upon

proximate cause

limits liability to consequences that bear a reasonable relationship to the negligent conduct

substantial factor test

a standard adopted in several states in place of proximate cause; a jury may hold a defendant liable in tort if it finds that defendant’s conduct was a major cause of the injury in question

intervening conduct

in tort, an independent cause that comes between the original wrongful act and the injury that relieves liability that would otherwise exist for the original act; a legal break in the causal connection

superseding cause

the act of a third party, or an outside force, that intervenes to prevent a defendant from being liable for harm to another due to negligence

assumption of risk

common-law doctrine under which a plaintiff may not recover for the injuries or damages that result from an activity in which the plaintiff willingly participated

contributory negligence

if a plaintiff can be shown to have contributed negligence to a situation in which a defendant is accused of negligence, there may be no recovery

comparative negligence

a defense to negligence whereby the plaintiff’s damages are reduced by the proportion the plaintiff’s fault bears to the total injury suffered

intentional torts

a wrong committed upon the person or property of another, where the actor is expressly or impliedly judged to have intended to commit the act that led to the injury

tortfeasors

an individual or business that commits a tort

assault

any word or action intended to cause another to be in fear of immediate physical harm

battery

unlawful touching, which is intentional physical contact without consent

privilege

in tort law, the ability to act contrary to another’s legal right without that party having legal redress for the consequences of that act; usually raised as a defense

slander

an oral defamation of one’s reputation or good name

libel

a defamation that is in the form of a printing, writing, pictures, or broadcast on radio or television

absolute privilege

a defense in a defamation suit affirming that the defendant had an unconditional right to make the statements in question and be free from litigation

conditional privilege/qualified privilege

eliminates liability when the false statement was published in good faith and with proper motives, such as for a legitimate business purpose

constitutional privilege

protects members of the press who publish “opinion” material about public officials, public figures, or persons of legitimate public interest

material fact

information that is substantially relevant to the consideration of a contract or to securities or to the decision made in a trial

scienter

intent to defraud

privity

a legal relationship between parties, such as between parties to a contract

caveat emptor

“let the buyer beware”

strict liability

holding manufacturers liable to consumers injured by defective products regardless of whether the manufacturer had been negligent

bulk-supplier doctrine

when a supplier sells a product to an intermediary in bulk, the supplier can discharge its duty to warn the ultimate users if it provides adequate instructions to the distributor next in line, or determines that the intermediary party is adequately trained in the use of the product

sophisticated user

knowledgeable purchaser or learned intermediary