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Business Law I > Unit 2 > Flashcards

Unit 2 Flashcards

1
Q

3 Essentials of a crime

A

1) demonstrate that his alleged acts violated a criminal statute
2) prove beyond a reasonable doubt that he committed those acts
3) prove that he had the capacity to form a criminal intent 135

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2
Q

the best example for commercial speech is…

A

an advertisement for a product, service, or business 139

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3
Q

obscene expression receives _____ First Amendment protection.

A

No 139

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4
Q

The Miller Test / Controlling obscenity test (3-part)

A

a) [That] the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
b) that the work depicts or describes, in an offensive way, sexual conduct specifically defined by the applicable state law
c) that the work, taken as a whole, lacks serious literacy, artistic, political, or scientific value 140

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5
Q

Fair notice doctrine (2 parts)

A

a) statute must provide fair notice of what conduct is prohibited; and
b) and must NOT encourage arbitrary and discriminatory enforcement 142

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6
Q

8th Amendment

A

prohibits cruel and unusual punishment 143

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7
Q

mens rea

A

criminal intent 143

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8
Q

criminal law recognizes 3 General types of incapacity

A

Intoxication, infancy, and insanity 144

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9
Q

Evidence of a defendants nolo plea is ________ in later civil cases against the defendant

A

inadmissible 145

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10
Q

What remedy is commonly used for unreasonable searches or seizures?

A

The exclusionary rule 146

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11
Q

Surveillance, searches, and other investigatory intrusions of suspected terrorists require a warrant from the ______ court.

A

FISA 155

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12
Q

company records generally do ______ qualify for 5th Amendment protections.

A

NOT 159

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13
Q

corporations and similar entities have no ________ Amendment protections

A

5th 159

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14
Q

Due Process clauses are covered under the _____ Amendment

A

5th

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15
Q

6th Amendment

A
  • speedy trial
  • right to an attorney
  • impartial jury
  • right to confront and cross-examine witnesses against them 161
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16
Q

Corporations now may face criminal liability for almost any offense if the statute in question indicates a ________ to hold corporations responsible

A

Legislative intent 162

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17
Q

Strict liability offenses (under corporate offenses)

A

ordinarily require proof that the defendant committed some wrongful act 164

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18
Q

Vicarious liability offenses (under corporate offenses)

A

Impose criminal liability on a defendant for the acts of the third parties (usually their employees), but may require proof of some form of mens rea such as the defendants negligence or reckless failure to supervise 164

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19
Q

how does the “Corporate Sentencing guidelines” impose fines upon corporate violators?

A

Culpability score 165

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20
Q

Deferred prosecution agreement

A

Corporations can avoid formal criminal charges and trials in return for their agreement to pay monetary penalties and submit to outside monitoring of their activities 165

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21
Q

The Sarbanes-Oxley Act of 2002

A
  • created the Public Company Accounting Oversight Board
  • higher levels of accuracy in corporate reporting of financial info
  • promote responsible conduct on part of the corporate officers and directors 169
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22
Q

In response to highly publicized financial scandals and accounting controversies involving Enron, Arthur Anderson, Global Crossing, WorldCom, and other firms, the _____________ of 2002 was enacted

A

The Sarbanes-Oxley Act of 169

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23
Q

The Foreign Corrupt Cractices Act

A

Criminalizes the offering or giving of anything of value to officials of foreign governments in an attempt to influence their official actions 169

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24
Q

Racketeer Influenced and Corrupt Organizations Act (RICO)

A

originally concerned with organized crime’s entry into legitimate business practices, it is presently a tool to attack unethical business practices 169

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25
Q

To show a pattern of racketeering the prosecution must prove the defendants commission of at least ____ acts of racketeering activity within a _____ period

A

two, 10 year 170

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26
Q

The federal Computer Fraud and Abuse Act (CFAA)

A

1) knowingly, and with intent to defraud
2) accesses a protected computer without authorization, or exceeds authorized access;
3) and by means of such conduct furthers the intended fraud and obtains anything of value 174

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27
Q

Tort

A

A civil wrong that is not a breach of a contract 182

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28
Q

4 types of civil wrong, as applied to torts

A
  • intent
  • recklessness
  • Negligence
  • Strict liability 182
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29
Q

Recklessness

A

Willful and wanton conduct 182

30
Q

Negligence

A

A failure to use reasonable care, with harm to another party occurring as a result 182

31
Q

Strict liability

A

Liability without fault or, more precisely, liability irrespective of fault 183

32
Q

A plaintiff does not have to prove ______ in a _____ liability case.

A

fault, strict 183

33
Q

Compensatory damages

A

Recovered for the harm she suffered as a result of the defendants wrongful act 183

34
Q

Punitive damages

A

These damages are reserved for the worst kinds of wrong doing. They are intended to punish the wrongdoer. 183

35
Q

battery

A

The intentional and harmful or offensive touching of another without their consent 186

Note: Touching may not even occur as is the case in a shooting or laying of a trap

36
Q

Assault

A
  • An intentional attempt or offer to cause a harmful or offensive contact with another person
  • must be reasonable apprehension of imminent battery in the other persons mind 188
37
Q

Tort of intentional infliction of emotional distress (4 elements)

A
  1. the alleged tortfeasor acted intentionally or recklessly
  2. the alleged tortfeasors conduct was extreme and outrageous
  3. the conduct cause the plaintiff emotional distress, and
  4. the emotional distress was severe
38
Q

False imprisonment

A

The intentional confinements of another person for an appreciable time without his consent
- a few minutes is enough 191

39
Q

Defamation (4 elements)

A
  1. unprivileged
  2. publication of
  3. false and defamatory
  4. statements concerning another 194
40
Q

2 forms of defamation

A

Libel and slander 194

41
Q

Libel

A

Written or printed defamation or to other defamation having a physical form, such as a defamatory picture, sign, or statue 194

42
Q

Which is more serious and why? Libel or Slander?

A

Libel because it is permanent. The plaintiff can presumed damages to compensate for presumed reputational harm. 194

43
Q

slander

A

Refers to all other defamatory statements, mainly oral deformation 194

44
Q

Slander, on the other hand, is generally not actionable without proof of ___________, unless the nature of the slanderous statements is so serious that it can be classified as __________

A

special damages, slander per se 194

45
Q

Slander per se (4 main types)

A

slanderous statement that the plaintiff has….

  1. has committed a crime involving moral turpitude or potential imprisonment
  2. has a loathsome disease
  3. is professionally incompetent or guilty of professional misconduct, or
  4. is guilty of a serious sexual misconduct 194
46
Q

could a publisher be liable for defamation?

A

yes 195

47
Q

can a distributor be liable for defamation

A

no 195

48
Q

Defamation is an _______ tort

A

intentional 195

49
Q

for a public official to prove defamation they must show…

A

knowledge of falsity and actual malice by clear and convincing evidence 199

50
Q

Invasion of privacy - 3 distinct torts

A
  • intrusion on solitude or seclusion (requires REP)
  • public disclosure of private facts (Generally doesn’t apply to public officials)
  • faults light publicity (publicity that places a person in a false light in the public eye) 208
51
Q

Commercial appropriation of name or likeness

A

Liability for invasion of privacy can exist when, without the person’s consent, the defendant commercially uses someone’s name or likeness, normally to imply her endorsement of a product or service, or non-existent connection with a defendants business. 209

52
Q

Malicious prosecution (3 elements)

A
  1. defendant caused criminal proceedings against plaintiff without probable cause
  2. defendant did so for and improper purpose
  3. criminal proceedings were eventually terminate in favor of the plaintiff 214
53
Q

Abuse of process

A

imposes liability when a defendant initiates legal proceedings for some other reason than the one for which the proceedings were designed. 214

54
Q

private nuisance

A

some interference with the plaintiff’s use and enjoyment of their land (no physical trespass). Ex: odor, noise, light, etc. 215

55
Q

conversion

A

intentional exercise of dominion or control over the plaintiff’s personal property without the plaintiff’s consent 218

56
Q

Negligence tort (3 elements)

A

1) that the defendant owed a duty of care to the plaintiff
2) that the defendant committed a breach of this duty; and
3) that this breach was the actual and proximate cause of injury experienced by the plaintiff 227

57
Q

Premises Liability cases (3 types)

A

1) Invitees (customers, visitors, etc): must exercise reasonable care
2) Licensees (Someone who enters property for their own purposes such as door-to-door salesperson, solicitors, etc): ONLY required to warn of dangerous premises conditions that are unlikely to be discovered.
3) Trespassers: NO duty, however, must not willfully and wantonly injure trespassers once their presence is known 235

58
Q

negligence per se

A

the defendants violation of such laws may create a breach of duty if the plaintiff:

1) was within the class of persons intended to be protected by the statute of law, and
2) suffered harm of a sort that the statute or law was intended to protect against. 240

59
Q

personal injury

A

harm to the plaintiffs body 242

60
Q

property damage

A

harm to the plaintiffs real estate or personal property item. 242

61
Q

the usual rule is ______ damages are only recoverable in negligence cases.

A

compensatory 242

62
Q

The causation link (required link between the breach and the injury, 3 questions)

A

1) was the breach an actual cause of the injury
2) was the breach a proximate cause of the injury, and
3) what was the effect of any intervening cause arising after the breach and helping to cause the injury.

63
Q

actual cause (test)

A

the defendants conduct is the actual cause of the plaintiff’s injury when the plaintiff would not have been hurt BUT FOR (if not for) the defendants breach of duty 246

64
Q

proximate cause - typical with negligence torts

A

concerns the required degree of proximity or closeness between the defendants breach and the injury it actually caused 246

65
Q

foreseeable acts after the fact the defendant ___ liable for while unforeseeable acts after the fact the defendant ____ liable for

A

is, isn’t 249

66
Q

an intervening cause is an ______ act

A

unforeseeable 249

67
Q

res ipsa loquitur

A

when the plaintiff was in NO way responsible for their injury and the defendant had excessive control over preventing the harm, THEN the burden of proof shifts to the defendant 253

68
Q

negligence defenses (4)

A
  • contributory negligence
  • assumption of risk
  • comparative negligence
  • comparative fault 253
69
Q

contributory negligence

A

plaintiffs failure to exercise reasonable care for their own safety (full defense) 253

70
Q

comparative negligence

A

plaintiffs recovery = defendants percentage share of the negligence causing the injury X plaintiffs proven damages 253

71
Q

assumption of risk

A

plaintiffs voluntary consent to a known danger (full defense) 254

72
Q

exculpatory clause

A

contract by which a plaintiff expressly assumes the risk of injury thereby relieving the defendant of duty of care. 255

Business Law I (7 decks)

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