Bus law Exam 1
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136 terms
Terms | Definitions |
|---|---|
 Natural Law — | the Law is an inherent, intuitive set of principles |
| Legal Positivism — | the Law is what it is established and stated to be |
| Legal Realism — | the Law is what the particular decision- maker decides it to be |
| Critical Legal Studies - | the Law is an implement of societal control to maintain the power of the elite class |
| Substantive— | law creating rights, duties and remedies |
| Procedural— | rules for enforcing substantive law through administrative or judicial processes |
| Public— | law dealing with the relationship between government and individuals |
| Private— | law governing the relationships among individuals and/or legal entities such as corporations |
| Constitutional Law -- | fundamental law of a government establishing its powers and limitations |
| Judicial Law -- | Common Law: body of law developed by the courts; |
| Legislative Law | -- statutes or ordinances adopted by legislative bodies (includes Treaties) |
| Administrative Law -- | rules, regulations, orders, and decisions made by administrative agencies |
| Restatement of Laws -- | A scholarly, researched summary of the general principles of common law in a particular area of law |
| Uniform Acts -- | A model statute drafted by conference and adopted by a number of states. UCC, UPA, etc. |
| Hierarchy of Courts in FL | 1. FL. Supreme Court 2. FL. District Court of Appeals 3. FL. Circuit Courts 4. FL. County Courts |
| Hierarchy of Courts in US | 1. U.S. Supreme Court 2. U.S. Circuit Court of Appeals 3. U.S. District Courts |
| Ethical Fundamentalism — | individuals look to a central authority or set of rules to guide them in ethical decision making. |
| Ethical Relativism — | actions must be judged by what individuals subjectively feel is right or wrong for themselves. |
| Situational Ethics — | one must judge a person's actions by first putting oneself in the actor's situation. |
| Utilitarianism — | moral actions are those that produce the greatest net happiness for society as a whole compared with net pain (e.g. Jeremy Bentham). |
| Act Utilitarianism — | assesses each act separately according to whether it maximizes good over bad. |
| Rule Utilitarianism — | supports rules that on balance produce the greatest pleasure for society. |
| Cost-Benefit Analysis — | quantifies the benefits and costs of alternatives. |
| Social Egalitarians — | believe that society should provide all its members with equal amounts of goods and services regardless of their relative contributions (e.g. Karl Marx). |
| Distributive Justice — | stresses equality of opportunity rather than results. |
| Libertarians — | stress market outcomes as the basis for distributing society's rewards. |
| Profitability — | because corporations are artificial entities established for profit-making activities, their only social obligation should be to return as much money as possible to shareholders. |
| Unfairness — | whenever corporations engage in social activities such as supporting the arts or education, they divert funds rightfully belonging to shareholders and/or employees to unrelated third parties. |
| Accountability — | a corporation is subject to less public accountability than public bodies. |
| Expertise — | although a corporation may have a high level of expertise in selling its goods and services, there is no guarantee that any promotion of social activities will be carried on with the same degree of competence. |
| The Social Contract — | society allows for the creation of corporations and gives them special rights, so corporations are responsible to society. |
| *Less Government Regulation — | by taking a proactive role, corporations create a climate of trust and respect that has the effect of reducing government regulation. |
| *Goodwill — | corporate ethical behavior and social involvement creates goodwill, which simply makes good business sense. |
| Fiduciary Duty - | a corporation's fundamental legal duty is to its shareholders |
| Right of Appeal | is to the District Court of Appeal. You have a right to appeal in this court. |
| Discretionary Review . | is to the Florida Supreme Court. Decides if they will hear appeal case |
| Stare Decisis - | the doctrine that once an issue has been decided by a court, all courts lower in authority than that court must follow that decision even if they do not agree with it. |
| Subject Matter Jurisdiction - | authority of a court to decide a particular kind of case, based on either the type of claim or amount at issue. |
| Jurisdiction over the Parties - | the power of a court to bind the parties to a suit. |
| Exclusive Federal Jurisdiction - | Federal crimes, bankruptcy, antitrust, patent, trademark, copyright, and other specified cases. |
| Concurrent Federal/State Jurisdiction - | concurrent means more than one court has authority to hear the same case |
| State and Federal courts have concurrent jurisdiction over | 1. Federal question cases (cases arising under the Constitution, statutes, or treaties of the United States) that do not involve exclusive Federal jurisdiction and 2. diversity of citizenship cases involving more than $75,000. |
| Exclusive State Jurisdiction - | State courts have exclusive jurisdiction over all matters to which the Federal judicial power does not reach. |
| Removal Jurisdiction - | In most circumstances, when a case is filed in state court where there is concurrent jurisdiction, the defendant may remove it to Federal Court. |
| In Personam Jurisdiction - | jurisdiction based upon claims against a person, in contrast to jurisdiction over the person's property. |
| In Rem Jurisdiction - | jurisdiction based on claims against property located |
| Personam Jurisdiction may exist when: | a person is a resident of a state; is served while being present in a state; or based on a long-arm statute. |
| Long-arm statutes | allow states to exercise jurisdiction over out-of-state defendants when there is a connection between the defendant and an event in the state |
| Civil Procedure | 1. Plaintiff drafts initial pleadings, including summons and complaint. 2. Plaintiff files complaint in appropriate court and has summons issued. 3. Plaintiff has summons and complaint served on Defendant(s). 4. Defendant(s) must answer, typically within 20 days of service, or default may be entered |
| Answer - | defendant's pleading in response to the plaintiff's complaint. May include affirmative defenses |
| Counter, Cross, or Third Party Claims - | Defendant may bring claims against the Plaintiff or another party along with the answer. |
| *The Answer Phase - | Defendant may respond in a variety of ways. |
| Motion to Dismiss - . | Defendant may move to dismiss complaint prior to answering; these defenses may also be included in the answer |
| Summary Judgment - | final ruling by the judge in favor of one party based on the evidence disclosed by discovery. |
| *Arbitration - | a non-judicial proceeding in which a neutral party selected by the disputants renders a binding decision (award). |
| ... | - Arbitration is Increasingly Common |
| *Mediation - | a formal nonbinding process in which a qualified third party acts as an intermediary between the disputing - Mediation is the largest single resolver of bona fide cases in both systems. Virtually every civil case will be sent to mediationparties and proposes solutions for them to consider. |
| - Disposition By Motion - | .in most states, much more common in federal court than in state court |
| Federalism - | the division of governing power between the Federal government and the States. |
| Federal Supremacy - | Federal law takes precedence over conflicting State law. |
| Federal Preemption - | right of the Federal government to regulate matters within its power to the exclusion of regulation by the States. |
| Judicial Review - | Court examination of governmental actions to determine whether they conform to the U.S. Constitution. |
| Separation of Powers - | allocation of powers among executive, legislative, and judicial branches of government. |
| State Action - | actions of governments to which constitutional provisions apply. The Constitution does not limit private behavior - it may only protect it. |
| Federal Commerce Power - | exclusive power of the Federal government to regulate commerce with other nations and among the States. |
| State Regulation of Commerce - | the "dormant" commerce clause of the Constitution restricts the States' power to regulate activities if the result obstructs interstate commerce. |
| ...Types Laws that levy taxes on goods moving in commerce through the state (except sales taxes to retail purchasers)of laws are likely to be invalid | ... |
| Agencies can be executive or independent - | . independent agency leaders are appointed forset terms and cannot generally be fired.Laws that unduly burden interstate commerce, such as by strict regulation |
| ... | ... |
| Freedom of Speech - | First Amendment protects most speech. |
| Corporate Political Speech - | a corporation's right to speak out on political issues (Citizen's United) |
| Commercial Speech - | expression related to the economic interests of the speaker and its audience; receives a lesser degree of protection. |
| Defamation - | a tort consisting of a false communication that injures a person's reputation; receives limited constitutional protection. |
| Due Process - | Fifth and Fourteenth Amendments prohibit the Federal and State governments from depriving any person of life, liberty, or property without due process of law. |
| Substantive Due Process - | determination of whether a particular governmental action is compatible with individual liberties. |
| Procedural Due Process - | requires the governmental decision-making process to be fair and impartial if it deprives a person of life, liberty, or property. |
| Government taking of private property is limited by Due Process nor shall private property be taken for public use, without just compensation | (5th Amendment) |
| Rulemaking - | process by which administrative agencies promulgate rules of law. |
| Equal Protection - | requires that similarly situated persons be treated similarly by governmental actions. |
| Rational Relationship Test - | standard of review used to determine whether economic regulation satisfies the equal protection guarantee. |
| Strict Scrutiny Test - | exacting standard of review applicable to regulation affecting a fundamental right or involving a suspect classification. |
| Intermediate Test - . | standard of review for a regulation based on gender and legitimacy |
| ...Legislative Rules - | substantive rules issued by an administrative agency under the authority delegated to it by the legislature. |
| ...Interpretative Rules - | statements issued by an administrative agency indicating how it construes its governing statute. |
| Procedural Rules - | rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct. |
| Enforcement - | process by which agencies determine whether their rules have been violated. |
| ... | Many agencies have investigative authority, including subpoena powers, and can obtain and review information to determine whether their rules have been violated.They may also have the ability to assess fines or other penalties |
| Adjudication - | formal methods by which an agency resolves disputes. |
| ... | In cases where an agency has taken enforcement action, or has denied an application or similar action, the agency may have the ability to have the matter litigated in agency administrative proceedings conducted by an administrative law judge |
| Judicial Review - | acts as a control or check by a court on a particular rule or order of an administrative agency. Final orders of agencies in their adjudicative capacity may be appealed to an appropriate court Courts review legal determinations |
| Felony - | a serious crime. |
| Misdemeanor - | a less serious crime Lower "degree" number is more severe |
| A capital felony | is one punishable by the death penalty |
| Actus Reus - | a wrongful or prohibited act - battery, homicide, etc. |
| Mens Rea - | criminal intent or mental fault - the degree of mental fault required depends on the crime |
| Vicarious Liability - | liability imposed for acts of employees if the employer directed, participated in, or approved of the acts. (Arthur Anderson case) |
| Liability of a Corporation - . | under certain circumstances a corporation may be convicted of crimes and punished by fines |
| Larceny - | non-consensual taking and carrying away of personal property of another with the intent to deprive the victim permanently of the property. |
| Embezzlement - | taking of another's property by a person who was in lawful possession of the property. |
| False Pretenses - | obtaining title to property of another by means of representation one knows to be materially false; made with intent to defraud. |
| Robbery - | committing larceny with the use or threat of force. |
| Burglary - | under most modern statutes, an entry into a building with the intent to commit a felony. |
| Extortion - | making unlawful threats to obtain money or property. |
| Bribery - | offering money or property to a public official to influence the official's decision. |
| Forgery - | intentional falsification of a document to defraud. |
| Bad Checks - . | knowingly issuing a check without funds sufficient to cover the check |
| Defense of Person or Property - | individuals may use reasonable force to protect themselves, other individuals, and their property. |
| Duress - | coercion by threat of serious bodily harm; a defense to criminal conduct other than murder. |
| Mistake of Fact - | honest and reasonable belief that conduct is not criminal (intent crimes only). |
| Fourth Amendment - . | protects individuals against unreasonable searches and seizures |
| Fifth Amendment - | protects persons against self- incrimination (Miranda rights ), double jeopardy, and being charged with a capital crime except by grand jury indictment. Requires due process, including Brady |
| Sixth Amendment - to counsel. | provides the accused with the right to a speedy and public trial, the opportunity to confront witnesses, process for obtaining witnesses, and the right |
| Eighth Amendment - | prohibits excessive bail, and excessive fines or cruel and unusual punishments |
| Tort - | from the Latin meaning "twisted," it is an action that is a wrongful under civil law. |
| Intentional Tort - | A tort in which the wrongful action was undertaken deliberately with the intention to cause the specific act to occur, or was taken knowing that it would occur. |
| Assault - | intentional infliction of apprehension of immediate bodily harm or offensive contact. |
| Battery - | intentional infliction of harmful or offensive bodily contact. |
| False Imprisonment - | intentional and unreasonable confining of a person against her will. |
| Infliction of Emotional Distress - | extreme and outrageous conduct causing severe emotional distress. |
| Defamation - | false communication that injures a person's reputation. |
| Libel - | written or electronically transmitted defamation. |
| Slander - | spoken defamation. |
| torts | Invasion of Privacy |
| Appropriation of Name or Identity - | unauthorized use of a person's identity. |
| Intrusion into Seclusion - | unreasonable and offensive interference with the seclusion of another. |
| Public Disclosure of Private Facts - | offensive publicity of private information. |
| False Light - | offensive and misleading publicity about another. |
| Trespass - | wrongfully entering land of another. |
| Nuisance - | a nontrespassory interference with another's use and enjoyment of land. |
| Conversion -. | unauthorized intentional exercise of control over another's personal property |
| Interference with Contractual Relations - | intentionally causing one of the parties to a contract not to perform. |
| Disparagement - " | publication of false statements about another's property or products; "business defamation |
| Fraudulent Misrepresentation (Fraud) - | a false statement, made with knowledge of its falsity, intended to induce another to act. |
| Consent - | a person may not recover for injury for an incident to which he willingly and knowingly consents. |
| Self-Defense - | a person may take appropriate action to prevent harm to himself where time does not allow resort to the law. |
| Legal Privilege - | parties may be legally entitled to act in certain ways |
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