Structure and Enforcement of US Law Flashcards
What are the sources of U.S. law?
- Constitutions
- Legislation
- Regulations and Rules
- Case Law
- Common Law
- Contract Law
Is the right to privacy explicit in the U.S. Constitution.
No, the word “privacy” is not in the U.S. constitution. However, some parts directly affect privacy such as the 4th Amendment which limits gov searches. Amendments 3, 5, 9, and 14 also provide privacy protections to Americans. State constitutions may create stronger rights than those found in the U.S. constitution. For example, CA state constitution expressly recognizes a right to privacy.
What is legislation?
Laws passed by Congress or state legislatures. State legislation may be stricter than national legislation, and vice versa
What are Regulations and Rules?
Regulatory agencies, such as the Federal Trade Commission and Federal Communications Commission, issue regulations and rules that place compliance expectations on industries, such as marketing
What is Case Law?
Final decisions made by judges in court cases. When similar issues arise in the future, judges may look to past decisions as precedent and decide the case in a manner consistent with past decisions - “stare decisis”, but precedents change
What is Common Law?
legal principles that have developed over time through judicial decisions and contrast with statutory laws. Draw from social customs and expectations. EX) doctor-patient and attorney-client confidentiality
What is a Consent Decree?
Consent decrees are agreements or settlements that resolve a dispute between a regulator and a private party without admission of guilt or liability. Through a legal document approved by a judge, the defendant may have to take specific action, such as agreeing to stop the alleged illegal activity or pay money to the government and agree to not violate the relevant law in the future.
What are the fundamental requirements for forming a binding contract?
- Offer
- Acceptance
- Consideration
What is an Offer?
Proposed language to enter into a bargain. It must be communicated to another person and remain open until it is accepted, rejected, retracted or has expired. A counteroffer ends the original offer.
What is Acceptance?
The assent or agreement by the receiver of the offer that the offer was accepted. Acceptance must be communicated to the offeror.
What is Consideration?
Is the bargain-for exchange. Legal benefit received by one person and the legal detriment imposed to the other. Consideration usually takes the form of money, property, or services.
What is Tort Law?
Are civil wrongs recognized by the law as the grounds for lawsuits. These wrongs result in an injury or harm that constitutes the basis for a claim.
What are the 3 general tort categories?
- Intentional Torts - when a defendant knew or should have known that their action or inaction would cause harm.
- Negligent Torts - when a defendant’s actions were unreasonably careless or unsafe.
- Strict Liability - when a defendant has legal responsibility for damages or injury even if they are not negligent or at fault, as in product liability
What is a Person?
Any entity with legal rights, including an individual or a corporation.
What is the meaning of Jurisdiction?
The authority of a court to hear a particular case. The court must have subject matter jurisdiction and personal jurisdiction.
What is Preemption?
A superior government’s ability to have its laws supersede those of an inferior government.
What is “Private Right of Action”?
The ability of an individual harmed by a violation of law to file a lawsuit against the violator.
What is the purpose of a Notice?
- consumer education
2. corporate accountability
What is a Privacy Notice?
Often refers to external communications, issued to consumers, customers, or users.
What is a Privacy Policy?
Often refers to internal standards used within the organization.
What is Choice?
The ability to specify whether personal information will be collected and/or how it will be used or disclosed.
What is an “opt in” choice?
An affirmative indication of choice based on an express act of the person giving the consent.
What is an “opt out” choice?
A choice can be implied by the failure of the person to object to the use or disclosure.
What is Access?
The ability to view personal information held by an organization.
When must Access and Correction be provided?
When the information is used for any type of substantive decision making, such as for credit reports.
Which federal agencies engage in regulatory activities concerning privacy in the private sector?
- Federal Trade Commission (FTC)
- Federal Communications Commission (FCC)
- Department of Commerce (DoC)
- Department of Health and Human Service (HHS)
- Federal Reserve Board (Fed)
- Office of Comptroller of the Currency (OCC)
- Consumer Financial Protection Bureau (CFPB)
Who enforces privacy at the state level?
State attorney generals
How do state attorney generals bring enforcement actions?
Typically, pursuant to state laws prohibiting unfair and deceptive trade practices.