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Law

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A body of rules of action or conduct prescribed by controlling authority and having binding legal force

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Functions of the Law

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Keeping the peace Shaping moral standards Promoting social justice Maintaining the status quo Facilitating orderly change Facilitating planning Providing a basis for compromise Maximizing individual freedom

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Qualities of the Law

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Fairness, Flexibility

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Schools of Jurisprudential Thought

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Natural Law School Historical School Analytical School Sociological School Command School Critical Legal Studies School Law and Economics School

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Natural Law School

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Law is based on what is "correct" Law should be based on morality and ethics

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Historical School

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Law is an aggregate of social traditions and customs Changes in the norms of society will gradually be reflected in the law

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Analytical School

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Law is shaped by logic The emphasis is on the logic of the result rather than on how the result is reached

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Sociological School

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Law is a means of achieving and advancing certain sociological goals The purpose of law is to shape social behavior

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Command School

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Law is a set of rules developed, communicated, and enforced by the ruling party The law changes when the ruling class changes

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Critical Legal Studies School

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Legal rules as unnecessary Legal disputes should be circumstantially solved by applying arbitrary rules of what is deemed "fair"

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Law and Economics School

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Promoting market efficiency should be the central concern of legal decision making

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History of American Law

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English system of law was adopted as a system of jurisprudence in early American colonies Acted as a foundation for American judges to develop a common law in America

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Constitutions

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The U.S. Constitution is the "supreme law of the land" Establishes structure of federal government Legislative branch Executive branch Judicial branch

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Treaties

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The President, with the advice and consent of the Senate, may enter into treaties with foreign governments Treaties become part of the supreme law of land Treaties affect international business

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Federal Statutes

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Federal Statutes Statutes are written laws that establish certain courses of conduct that covered parties must adhere to The U.S. Congress enacts federal statutes Federal statutes are organized in to code books These code books constitute codified law

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State Statutes

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State legislatures enact state statutes which are placed in code books or on the Internet

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Ordinances

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Law enacted by local government bodies Ordinances are codified

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Executive orders

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Issued by the president and state governors Example - Prohibiting U.S. companies to sell goods and services to an enemy country during war Power derived from express delegation from legislative branch or implied from constitutional powers

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Regulations and Orders of Administrative Agencies

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Empowered by legislative and executive branches of government Adopt rules and regulations Enforce statutes Hear and decide disputes Many agencies regulate business Example - SEC & FTC

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Judicial decisions

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Federal and state courts issue judicial decisions Judicial decisions state the rationale used by the court in reaching that decision

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Doctrine of Stare Decisis

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Based on the common law tradition, past court decisions become precedent for deciding future cases

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Ethics

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A set of moral principles or values that governs the conduct of an individual or group

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Ethical Fundamentalism

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A person looks to an outside source or a central figure for ethical rules or commands This maybe a book or a person Critics argue that ethical fundamentalism does not permit people to determine right and wrong for themselves

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Utilitarianism

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A person must choose the action or follow the rule that provides the greatest good to society Origins in works of Bentham and Stuart It has been criticized because: It is difficult to estimate the "good" that will result from different actions It is hard to apply It treats morality as an impersonal calculation

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Kantian Ethics

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A person owes moral duties based on universal rules The rules are based on two principles: Consistency—All cases are treated alike Reversibility—Actor must abide by the rule he or she uses to judge the morality of someone else's conduct Critics argue that it is hard to reach a consensus as to what the universal rules should be

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Rawls's Social Justice Theory

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A person has a social contract with all others in society to obey moral rules that are necessary for people to live in peace and harmony Origins in work of Locke and Rousseau

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Ethical Relativism

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Individuals decide what is ethical based on their own feelings as to what is right or wrong.

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Corporate social audit

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Examines how well employees have adhered to the company's code of ethics and how well the company has met its duty of social responsibility

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Maximizing profits

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To maximize profits for stockholders.

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Moral minimum

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To avoid causing harm and to compensate for harm caused.

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Stakeholder interest

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To consider the interests of all stakeholders, including stockholders, employees, customers, suppliers, creditors, and local community.

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Corporate citizenship

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To do good and solve social problems.

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Limited-jurisdiction trial courts

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Hear matters of specialized or limited nature Decision can be appealed to appealed to a general jurisdiction court or an appellate court Small claims courts hear civil cases involving small dollar amounts

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General-jurisdiction trial courts

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Hear cases that are not within the jurisdiction of limited-jurisdiction trial courts Record and store testimony and evidence Decisions are appealable to an intermediate appellate court or the state supreme court

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Intermediate Appellate Courts

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Hear appeals from trial courts Review trial court record to determine if there have been any errors at trial that would require reversal or modification No new testimony or evidence permitted

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Highest State Court

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Called "supreme court" in most states Hears appeals from intermediate state courts and certain trial courts No new testimony or evidence permitted Decisions of state supreme courts are final, unless a question of law is involved

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Special Federal Courts

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Tax Court Court of Federal Claims Court of International Trade Bankruptcy Court Court of Appeals for the Armed Forces Court of Appeals for Veterans Claims

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U.S. District Courts

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Trial courts of general jurisdiction Impanel juries Receive evidence Hear testimony Decide cases At least one district court in each state Judges have lifetime appointments

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U.S. Courts of Appeals

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Intermediate appellate courts Hear appeals from the district courts located in their circuit 13 Circuits Lifetime appointments 3-judge panel

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U.S. Courts of Appeals

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Review the record of lower courts or administrative agency proceedings Determine if there has been any error of law that would warrant reversal or modification of the lower court decision No new evidence or testimony is heard Petitioner can request an en banc review

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Supreme Court of the United States

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Located in Washington, DC Hears appeals from: Federal Circuit Courts of Appeals Federal District Courts Special federal courts Highest state courts No new evidence or testimony heard The Supreme Court is an appellate court Lower court record is reviewed to determine whether there has been an error that warrants a reversal or modification of the decision The Supreme Court's decision is final

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Decisions of the U.S. Supreme Court

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Unanimous Majority Plurality Tie

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Petition for certiorari

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A petition asking the Supreme Court to hear a case

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Writ of certiorari

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An official notice that the Supreme Court will review a case

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Federal courts have exclusive jurisdiction to hear cases involving:

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Federal crimes Antitrust Bankruptcy Patent and copyright issues Suits against the United States

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Standing to Sue:

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Plaintiff must have a stake in the outcome of case

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In Personam Jurisdiction:

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A court's jurisdiction over a person

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In Personam jurisdiction

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Personal jurisdiction exists over a defendant who is within the boundaries of the state A corporation is subject to personal jurisdiction in the state where it is incorporated, has principal office, or does business

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Long-arm statute

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Allows state courts to obtain personal jurisdiction over persons or businesses located in another state or country Allows summons to be served in other states Defendant must have some minimum contact with the state

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Long-arm jurisdiction

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Exercised over non-residents who have: Committed torts within the state Entered into a contract either in the state or that affects the state Transacted other business in the state that allegedly caused injury to another person

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In rem jurisdiction

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Jurisdiction to hear a case because of jurisdiction over the property of the lawsuit

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Quasi in rem jurisdiction:

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Jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching property of the defendant located in another state

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Venue

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Lawsuits must be heard by the court with jurisdiction that is nearest the location in which the incident occurred or where the parties reside Change of venue - to avoid pretrial publicity

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Forum-Selection and Choice-of-Law Clauses

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Parties' contract specifies which court will hear a legal dispute

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Chanel, Inc. v. Banks

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Web 2010 U.S. Dist. Lexis 135374 (2010) United States District Court for Maryland Issue Does the court have personal jurisdiction over the defendant?

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Complaint and summons for pleadings

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Plaintiff files a complaint Lists parties to the lawsuit Alleges facts and laws violated Adds a prayer for relief Court issues summons Directs defendant to appear and answer Complaint

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Answer for Pleadings

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Filed by the defendant Admits or denies allegations States affirmative defenses If all allegations are admitted, a judgment is entered against the defendant If no answer is filed, a default judgment is entered

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Cross-complaint

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Filed by the defendant against the plaintiff to seek damages or other remedy

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Reply

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Filed by the plaintiff Serves as answer to the cross-complaint

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Intervention

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Other parties with an interest in the lawsuit become parties to the lawsuit

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Consolidation

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Several lawsuits stemming from the same situation filed against a common defendant Court will consolidate the lawsuits if no undue prejudice exists Reduces strain on court system

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Class action

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Occurs when a group of plaintiffs collectively bring a lawsuit against a defendant Must be certified by the appropriate federal or state court Commonality of claims is essential

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Walmart Stores, Inc. v. Dukes

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131 S.Ct. 2541, 180 L.Ed.2d 374, Web 2011 U.S. Lexis 4567 (2011) Supreme Court of the United States Issue Is the certification of the class justified by law?

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Statute of limitations

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Establishes the period during which a plaintiff must bring a lawsuit against a defendant If a lawsuit is not filed within this time period, plaintiff loses the right to sue Established for each type of lawsuit

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Discovery

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Process of discovering facts about the case and witnesses before trial Purposes Preventing surprises during trial Allowing parties to thoroughly prepare for trial Preserving evidence Saving court time Promoting settlement of cases

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The major forms of discovery are:

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Deposition Interrogatories Production of documents Physical and mental examination

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Pretrial Motions

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A motion a party can make to try to dispose of all or part of a lawsuit prior to trial Types Motion for judgment on the pleadings Motion for summary judgment

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Settlement Conference

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Also known as pretrial hearing Facilitates the settlement of a case without trial Informal conference Used to identify major trial issues and relevant factors Most cases settle before trial

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Trial

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7th Amendment guarantees the right to a jury trial in cases in federal court Jury trial is held upon the request of either party If both parties waive their right to a jury, the trial will be without a jury The judge is the trier of fact in nonjury trials

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Appeal

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An appeal can be filed once a final judgment is entered In a civil case Either party can appeal the trial court's decision In a criminal case Only the defendant can appeal

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Appellate court will:

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Reverse lower court decisions for errors of law Reverse finding of fact only if it is unsupported by any evidence Not reverse a finding of fact made by a jury or judge

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Methods of resolving disputes other than litigation

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Negotiation Arbitration Mediation Mini-Trial Fact-finding Judicial Referee

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Negotiation

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Parties engage in discussions to try to reach a voluntary settlement May take place at any level of litigation Parties make offers and counteroffers A settlement-agreement is entered into

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Arbitration

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Common in commercial and labor disputes Parties choose neutral third party to hear evidence and testimony and decide the case Arbitrator makes a decision and enters an award Arbitration can be binding or non-binding

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Uniform Arbitration Act

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Promotes the arbitration of disputes at the state level

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Federal Arbitration Act

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A federal statute that provides for the enforcement of most arbitration agreements

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Mediation

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Parties choose a neutral third party to assist them Settlement is reached through intermediation

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Mediator

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is allowed to give opinions to either party Mediator does not make judgment or issue award

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Mini trial

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Voluntary private proceeding Lawyers for each side present their cases to representatives of each party A neutral third party can be hired Parties get to see the strengths and weaknesses of their case

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Fact finding

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A neutral fact-finder is employed to investigate the dispute The fact-finder presents the findings to the parties The information is used in negotiating a settlement The fact-finder is not authorized to make a decision or an award

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Judicial referee

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Court-appointed referee who conducts a private trial and renders a judgment The decisions stand as judgments of the court Parties reserve their right to appeal

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AT Mobility LLC v. Concepcion

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AT Mobility LLC v. Concepcion 131 S.Ct. 1740, 179 L.Ed.2d 742, Web 2011 U.S. Lexis 3367 (2011) Supreme Court of the United States Issue Does the Federal Arbitration Act (FAA) preempt California's law that outlaws class action waivers?

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E-Courts

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Used to settle legal disputes via the Internet Allow online filing of pleadings, briefs, and documents Evidence and documents can be scanned for storage Scheduling and conferences with the judge are held via telephone conferences and e-mail

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Federalism and delegated powers

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The U.S. form of government is federalism Federal government and state governments share powers Enumerated powers - delegated to the federal government by the states Powers not delegated to the federal government by the Constitution are reserved to the states

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Doctrine of separation of powers

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Article I - Legislative branch Article II - Executive branch Article III - Judicial branch

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Checks and balances

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Built to ensure no one branch of the federal government becomes too powerful

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Supremacy Clause

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Establishes that the federal Constitution, treaties, federal laws, and federal regulations are the supreme law of the land State and local laws that conflict with valid federal law are unconstitutional

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Preemption Doctrine:

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The concept that federal law takes precedence over state or local law Congress may expressly provide that federal statute exclusively regulates an area or activity Federal, state, and local governments can be given concurrent power

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Bruesewitz v. Wyeth LLC

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131 S.Ct. 1068, 179 L.Ed.2d 1, Web 2011 U.S. Lexis 1085 (2011) Supreme Court of the United States Issue Does the preemption provision in the federal NCVIA bar state law design-defect product liability claims against vaccine manufacturers?

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Commerce Clause

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Grants Congress the power "to regulate commerce with foreign nations, and among the several states, and with Indian tribes" Federal government has the power to regulate three types of commerce Commerce with Native American tribes Foreign commerce Interstate commerce Heart of Atlanta Motel v. United States

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Dormant Commerce Clause

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If the federal government has chosen not to regulate an area of interstate commerce that it has the power to regulate, the area is subject to the Dormant Commerce Clause A state can enact laws to regulate that area of commerce The regulation should not unduly burden interstate commerce

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Electronic commerce (e-commerce)

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Parties are permitted to obtain website domain names and conduct business electronically E-commerce can be used for Sales of goods Licensing of intellectual property Sales of services

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Bill of Rights

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First ten amendments to the U.S. Constitution Guarantees certain fundamental rights to natural persons Protects persons from intrusive government action By federal government By state governments (Incorporation doctrine)

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Freedom of Speech

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The right to engage in oral, written, and symbolic speech Fully protected speech Limited protected speech Unprotected speech

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Fully protected speech

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Cannot be regulated or prohibited by government Can be oral, written, or symbolic Example - criticizing the President, burning the U.S. flag as protest

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Brown, Governor of California v. Entertainment Merchants Association

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131 S.Ct. 2729, 180 L.Ed.2d 708, Web 2011 U.S. Lexis 4802 (2011) Supreme Court of the United States Issue Does the California act that restricts violent video games violate the First Amendment?

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Limited protected speech:

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Speech subject to time, place, and manner restrictions Offensive speech Commercial speech

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Unprotected Speech

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peech not protected by the First Amendment and may be forbidden totally

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Snyder v. Phelps

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131 S.Ct. 1207, 179 L.Ed.2d 172, Web 2011 U.S. Lexis 1903 (2011) Supreme Court of the United States Issue Does the Free Speech Clause of the First Amendment shield church members from tort liability for their funeral picketing speech?

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The Establishment Clause

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First Amendment clause prohibiting the government from either establishing a state religion or promoting one religion over another

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The Free Exercise Clause

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First Amendment clause that prohibits the government from interfering with the free exercise of religion

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Equal Protection Clause

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A clause that provides that a state cannot "deny to any person within its jurisdiction the equal protection of the laws" Laws cannot classify and treat "similarly situated" persons differently Artificial persons, such as corporations, are also protected Does not make the classification of individuals unlawful

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Strict scrutiny test:

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Applied to classifications based on: Suspect class (e.g., race) Fundamental rights (e.g., voting)

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Intermediate scrutiny test

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Applied to classifications based on protected classes (e.g., gender)

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Rational basis test

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Applied to classifications not involving a suspect or protected class Court will uphold government regulation so long as there is a justifiable reason for it Permits much of the government regulation of business

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Due Process Clause

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No person shall be deprived of "life, liberty, or property" without due process of the law Fifth Amendment - federal government action Fourteenth Amendment - state and local government action The government is not prohibited from taking a person's life, liberty, or property

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Substantive due process

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Requires laws to be clear, not overly broad in scope Tested using a reasonable person's understanding of the law Laws failing the test are declared void for vagueness

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Procedural due process

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Requires the government to give a person proper notice and hearing before depriving that person of life, liberty, or property

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Privileges and Immunities Clause

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Provides that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states"

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Privileges or Immunities Clause

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Provides that "no State shall make or enforce any law that shall abridge the privileges or immunities of the citizens of the United States"

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Administrative Law

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Law that governments enact to regulate industries, businesses, and professionals

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Administrative agencies:

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Agencies that governments create to enforce regulatory statutes

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General government regulation

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Government regulation that applies to many industries

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Specific government regulation

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Government regulation that applies to a specific industry

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Federal Administrative Agencies

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Federal administrative agencies are created by the U.S. Congress

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Cabinet?level federal departments:

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Federal agencies that advise the president and are responsible for enforcing specific administrative statutes enacted by Congress

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Independent federal administrative agencies:

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Federal agencies that have broad regulatory powers over key areas of the national economy

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State administrative agencies:

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Created by legislative branches of states Administers state regulatory laws

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Local administrative agencies:

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Created by cities, municipalities, and counties Administers local regulatory law

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Administrative law

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combination of substantive and procedural law

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Substantive administrative law—

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Law that an administrative agency enforces

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Procedural administrative law

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Establishes the procedures that must be followed by an administrative agency while enforcing substantive laws

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Administrative Law Judge ALJ

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An employee of an administrative agency Presides over an administrative proceeding Decides questions of law and fact concerning cases

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Order:

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A decision issued by an administrative law judge

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Administrative Procedure Act APA

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A federal statute that establishes procedures to be followed by federal administrative agencies while conducting their affairs

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Delegation doctrine:

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A doctrine that says When an administrative agency is created, it is delegated certain powers The agency can use only the legislative, judicial, and executive powers that are delegated to it

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Substantive rule making

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To adopt rules that advance the purpose of the statutes that the agency is empowered to enforce. These rules have the force of law. Public notice and participation are required.

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Interpretive rule making

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To adopt rules that interpret statutes. These rules do not establish new laws. Neither public notice nor participation is required.

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Statements of policy

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To announce a proposed course of action the agency plans to take in the future. These statements do not have the force of law. Public participation and notice are not required

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Licensing

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To grant licenses to applicants (e.g., television station licenses, bank charters) and to suspend or revoke licenses.

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Judicial

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The power to adjudicate cases through an administrative proceeding. This includes the power to issue a complaint, hold a hearing by an administrative law judge (ALJ), and issue an order deciding the case and assessing remedies.

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Executive

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The power to prosecute violations of statutes and administrative rules and orders. This includes the power to investigate suspected violations, issue administrative subpoenas, and conduct administrative searches.

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Unreasonable search and seizure

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Any search and seizure by the government that violates the Fourth Amendment to the U.S. Constitution Evidence from an unreasonable search and seizure "tainted evidence" is inadmissible in court

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Case 43.1:U.S. Supreme Court Search of Business Premises

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Case New York v. Burger 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601, Web 1987 U.S. Lexis 2725 Supreme Court of the United States Does the warrantless search of an automobile junkyard pursuant to a state statute that authorizes such search constitute an unreasonable search and seizure, in violation of the Fourth Amendment?

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Judicial Review of Administrative Agency Actions

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Review is expressly provided for in many federal statutes In the absence of enabling statute - APA authorizes judicial review of federal administrative agency actions

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Freedom of Information Act

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Federal act that gives the public access to documents in the possession of federal administrative agencies Documents are exempt from disclosure if they Are classified in the interests of national security Are statutorily prohibited from disclosure Interfere with law enforcement proceedings Are medical, personnel, and similar files Contain trade secrets, confidential or privileged information

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Sunshine Act

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A federal act that opens most federal administrative agency meetings to the public Exceptions are meetings: Where a person is accused of a crime Concerning an agency's issuance of a subpoena Where attendance of the public would significantly frustrate the implementation of a proposed agency action Concerning day?to?day operations

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Equal Access to Justice Act

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A federal act that protects persons from harassment by federal administrative agencies

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Privacy Act

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A federal act which states Federal administrative agencies can maintain only information about an individual that is relevant and necessary to accomplish a legitimate agency purpose

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Assault- Intentional Tort

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Assault Threat of immediate harm or offensive contact Any action that arouses reasonable apprehension of imminent harm Actual physical contact is unnecessary

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Battery-Intentional Tort

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Unauthorized and harmful or offensive physical contact with another person Direct physical contact between victim and perpetrator unnecessary May accompany assault

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Doctrine of transferred intent- Intentional Tort

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Party A intends to harm Party B, but actually injures Party C Law transfers perpetrator's intent from target to actual victim Party C can sue the perpetrator

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False imprisonment- Intentional Tort

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Intentional confinement or restraint of another person without authority or justification and without that person's consent Physical force Barriers Threats of physical violence False arrest

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Shoplifting and merchant protection statutes- Intentional Tort

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Merchants may stop, detain, and investigate suspected shoplifters if: There are reasonable grounds for suspicion Suspects are detained for only reasonable time Investigations are conducted in reasonable manner

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Case 5.1: False Imprisonment

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Walmart Stores, Inc. v. Cockrell 61 S.W.3d 774, Web 2001 Tex. App. Lexis 7992 Court of Appeals of Texas Issue Does the shopkeeper's privilege protect Walmart from liability under the circumstances of the case?

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Misappropriation of the right to publicity-Intentional Tort

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Attempt by another person to appropriate a living person's name or identity for commercial purposes Tort of appropriation Plaintiff's recourse: Recover the unauthorized profits made by the offender Obtain an injunction preventing further unauthorized use of his or her identity

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Invasion of the right to privacy-Intentional Tort

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Violation of a person's right to live his or her life without being subjected to unwanted and undesired publicity Placing person in a "false light"

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Defamation of character-Intentional Tort

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Types Slander Libel Plaintiff must prove that: Defendant made an untrue statement of fact about plaintiff Statement was intentionally or accidentally published to a third party

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Disparagement-Intentional Tort

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Untrue statement made about products, services, property, or reputation of a business

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Intentional misrepresentation (Fraud)- Intentional Tort

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Wrongdoer deceives another person out of money, property, or something of value

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Intentional infliction of emotional distress- Intentional Tort

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Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person Also known as tort of outrage

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Malicious prosecution-Intentional Tort

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Frivolous lawsuit maliciously brought Prevailing defendant sues original plaintiff to recover damages for injuries

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Unintentional Tort:

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A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions

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Negligence:

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Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do Unintentional Tort

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Elements of a Negligence Lawsuit

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The defendant owed a duty of care to the plaintiff The defendant breached the duty of care The plaintiff suffered injury The defendant's negligent act caused the plaintiff's injury The defendant's negligent act was the proximate cause of the plaintiff's injuries

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Duty of care:

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Obligation not to cause any unreasonable harm or risk of harm Tests used to determine whether a duty of care was owed: Reasonable person standard Reasonable professional standard

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Breach of duty of care:

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Failure to exercise care or to act as a reasonable person would act

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Case 5.2: Damages for Negligence

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Case Clancy v. Goad 858 N.E.2d 653, Web 2006 Ind. App. Lexis 2576 (2006) Court of Appeals of Indiana Issue Were the damages awarded to Dianna Goad excessive?`

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Causation in fact (actual cause):

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A person who commits a negligent act is not liable unless actual cause can be proven

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Proximate cause (legal cause)

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A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions

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Case 5.3: Duty of Care

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James v. Meow Media, Inc. 300 F.3d 683, Web 2002 U.S. App. Lexis 16185 (2002) United States Court of Appeals for the Sixth Circuit Issue Are the video and movie producers liable to the plaintiffs for selling and licensing violent video games and movies to Carneal, who killed the plaintiffs' three children?

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Professional malpractice

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The liability of a professional who breaches his or her duty of ordinary care Breach of reasonable professional standard

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Negligent infliction of emotional distress

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Permits a person to recover for emotional distress caused by the defendant's negligent conduct

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Negligence per se

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Violation of a statute that proximately causes an injury

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Res ipsa loquitur

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Defendant had exclusive control of the situation that caused the plaintiff's injury Injury would not have ordinarily occurred but for someone's negligence

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Good Samaritan laws

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Protects medical professionals who stop and render emergency first aid Relieves them from liability for ordinary negligence No relief for gross negligence or intentional or reckless conduct Laypersons not trained in CPR not covered

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Superseding or intervening event

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An event for which defendant is not responsible

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Assumption of risk

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Plaintiff knowingly and voluntarily participates in a risky activity that results in injury

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Case 5.4: Assumption of the Risk

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Case Lilya v. The Greater Gulf State Fair, Inc. 855 So.2d 1049, Web 2003 Ala. Lexis 57 Supreme Court of Alabama Issue Was riding a mechanical bull an open and obvious danger for which Lilya had voluntarily assumed the risk when he rode the mechanical bull?

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Contributory negligence

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Plaintiff who is partly at fault for his or her own injuries cannot recover against negligent defendant

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Comparative negligence

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Damages apportioned according to fault Pure comparative negligence Partial comparative negligence (50% rule)

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Strict Liability

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Strict liability is liability without fault A participant in a covered activity will be held liable for any injuries caused by the activity, whether or not he or she was negligent Abnormally dangerous activities Intentional Torts & Negligence - Deadly Swimming Pools

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U.S. criminal law system

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Person charged is presumed innocent until proven guilty The burden of proof is on the government Accused must be found guilty beyond a reasonable doubt Accused is provided with constitutional safeguards

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Crime:

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Any act done by an individual in violation of those duties that he or she owes to society and for the breach of which the law provides that the wrongdoer shall make amends to the public

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Parties to a criminal action

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Plaintiff - the government Defendant - the accused The government is represented by a prosecutor The accused is represented by a defense attorney

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Intent crimes

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Criminal act (actus reus) Criminal intent (mens rea) Specific intent crime General intent crime Merely thinking about a crime is not a crime, because no action has been taken

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Nonintent crimes

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Imposes criminal liability without a finding of intent Often imposed for reckless or grossly negligent conduct that causes injury to another person Involuntary manslaughter is a nonintent crime

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Arrest

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Police must obtain arrest warrant based on showing probable cause Warrantless arrests allowed when police arrive during: Commission of crime A person is fleeing from the scene of crime A situation where evidence is likely to be destroyed

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Indictment or information

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Criminal Procedure Grand jury Determines whether there is enough evidence to hold accused for trial Serious crimes Issues an indictment

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Magistrate

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Criminal Procedure Determines whether there is enough evidence Lesser crimes Issues an information

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Arraignment

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Accused informed of all charges Asked to enter a plea Guilty Not guilty Nolo contendere Does not admit guilt, but agrees to penalty Cannot be used as evidence of liability in civil trials

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Plea Bargaining

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Allows accused to plead to lesser crime Saves money, time Avoids risk of trial Prevents further overcrowding of jails Very common

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Criminal Trial

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Verdict must be unanimous If any juror doubts the guilt of the accused, the accused cannot be found guilty If jurors cannot agree, jury considered to be a hung jury Convicted defendant can appeal If defendant found not guilty, government cannot appeal

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Murder

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Unlawful killing of person with malice aforethought Different degrees of murder depending upon level of intent

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Felony murder rule

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death during commission of any felony may be prosecuted as murder Intent to commit murder inferred from intent to commit other crime

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Robbery

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The taking of personal property by use of fear or force If a weapon is used, it is considered armed or aggravated robbery

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Burglary

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The taking of personal property from another's home, office, or commercial or other type of building

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Larceny

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Wrongful and fraudulent taking of another person's personal property Includes trade secrets, computer programs, other business property Force or entry into a structure not required May distinguish between grand and petit larceny, based on value of property taken

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Receiving stolen property

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Knowingly receiving stolen property with the intention of depriving rightful owner of that property Property must be tangible property

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Arson

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Malicious or willful burning of another's dwelling Now extended to all structures Includes willful burning by structure's owner

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Forgery

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Business and White-Collar Crimes Written documents fraudulently made or altered Change affects legal liability of another person Signing another person's signature without intent to defraud is not forgery

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Embezzlement

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Business and White-Collar Crimes Fraudulent conversion of property by person to whom property is entrusted

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Bribery

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Business and White-Collar Crimes Offeror commits crime when bribe is offered Offeree commits crime when bribe is accepted Bribe can be of anything of value

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Extortion

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Business and White-Collar Crimes Threat to expose something about another person unless that other person gives money or property Also known as blackmail

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Criminal fraud

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Business and White-Collar Crimes Criminal fraud Obtaining title to property through deception or trickery Includes: Mail fraud Wire fraud Also called false pretenses or deceit California PTA Moms Accused of Ponzi Scheme

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Money Laundering Control Act

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Knowingly engage in monetary transaction through financial institution involving property worth more than $10,000 Knowingly engage in a financial transaction involving proceeds of an illegal activity If convicted, fines of up to $500,000 or twice the value of the property and up to 20 years in prison

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Racketeer Influenced and Corrupt Organizations Act (RICO)

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Criminal RICO - A federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an enterprise through a pattern of racketeering activity Civil RICO - Persons injured by a RICO violation can bring a private civil RICO action against the violator to recover for injury to business or property

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Criminal conspiracy

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Two or more persons enter into an agreement to commit a crime Requires an overt act Crime does not have to be committed

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Counterfeit Access Device and Computer Fraud and Abuse Act CFAA

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Federal crime to use a computer knowingly to obtain: Restricted federal government information Financial records of financial institutions Consumer reports of consumer reporting agencies

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Protection Against Unreasonable Search and Seizure

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Fourth Amendment protects persons and corporations from overzealous investigative activities by the government Reasonable search and seizure by the government is lawful Search warrants based on a probable cause are necessary in most cases Government may not search businesses without a search warrant

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Exclusionary rule

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Evidence obtained from an unreasonable search and seizure generally may not be used at trial

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Good faith exception

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Evidence may be introduced if law enforcement reasonably believed that they were acting pursuant to valid search warrant

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Case 8.1: U.S. Supreme Court Exigent Circumstances

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Case Kentucky v. King 131 S.Ct. 1849, 179 L.Ed2d 865, Web 2011 U.S. Lexis 3541 2011 Supreme Court of the United States Issue Do exigent circumstances exist that support the police's warrantless search of the apartment?

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Case 8.2: U.S. Supreme Court Search and Seizure

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Arizona v. Gant 129 S.Ct. 1710, 173 L.Ed.2d 485, Web 2009 U.S. Lexis 3120 2009 Supreme Court of the United States Issue Is the warrantless search of Gant's automobile justified as a search incident to an arrest?

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Privilege Against Self-Incrimination

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Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself or herself Protects natural persons only Attorney-client privileges Client can tell his or her attorney anything about the case without fear that the attorney will be called as a witness against the client Other privileges Psychiatrist/psychologist-patient privilege Priest/minister/rabbi/imam-penitent privilege Spousal privileges Parent-child privilege No accountant-client privilege under federal law

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Privilege Against Self-Incrimination

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Immunity from prosecution Government may offer person immunity from prosecution in exchange for testimony Person loses right to assert Fifth Amendment privilege Protection against double jeopardy Fifth Amendment provides that persons cannot be tried twice for same crime

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Right to a public trial

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Sixth Amendment guarantees the right: To be tried by an impartial jury of the state or district in which the accused crime was committed To confront (cross-examine) the witnesses against the accused To have the assistance of a lawyer To have a speedy trial

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Protection Against Cruel and Unusual Punishment

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Eighth Amendment protects criminal defendants from torture or other abusive punishment Does not prohibit capital punishment

USF Business Law Ch. 1-8 – Flashcards

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