BUS 13 Second Midterm

Ownership and possession

1. rights related to the use and enjoyment of the land (right to use without nuisance) 2. subsurface rights 3. water (riparian) rights 4. airspace rights

National Environmental Policy Act (NEPA)

A 1969 U.S. federal act that mandates an environmental assessment of all projects involving federal money or federal permits procedural steps: 1. categorical exclusion (CE): little or no potential for significant environmental impact 2. environmental assessment (EA): impact unknown, requires proposed action, alternatives, and impact 3. environmental impact statement (EIS): significant impact, requires description, forecasting, alternatives, financial assessment, plans for reducing harm

Sixth Amendment

A constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial. speedy trial - delay of eight months or more is unconstitutional

Defamation

Act of harming or ruining another's reputation

Fraudulent Misrepresentation

Any misrepresentation, either by misstatement or by omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment.

Standards of proof

Beyond a reasonable doubt (higher standard of proof); preponderance of the evidence (lower standard of proof)

Proximate Cause and Cause in Fact

Cause in fact: objectively determined by establishing a link between breach of duty and damages (but-for test) Proximate cause: has other considerations (closest-in-proximity test)

Mitigating circumstances

Facts that do not excuse a crime but may lessen the punishment ex. mental illness or young age

Mixed Motives

Hopkins - cause of the employment action is motivated by both legitimate and discriminatory motives

bona fide occupational qualification (BFOQ)

Identifiable characteristics reasonably necessary to the normal operation of a particular business. These characteristics can include gender, national origin, and religion, but not race.

public figure standard

If the victim is a public figure, such as a candidate for political office or a celebrity, the defamation must have been committed with malice or reckless disregard for the truth

Disparate Treatment

McDonnell Douglas - overt and intentional discrimination

Eminent domain

Power of a government to take private property for public use (with proper compensation)

Miranda v. Arizona

Supreme Court held that criminal suspects must be informed of their right to consult with an attorney and of their right against self-incrimination prior to questioning by police.

Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 applies to any private sector employer with 15 or more full-time employees and prohibits discrimination in the workplace on the basis of an employee's race, color, national origin, gender, religion, or pregnancy (known as protected classes)

Mistake

a belief that is not in accord with the facts mutual mistake: both parties hold an erroneous belief, the basis for canceling a contract, must concern a basic assumption on which the contract was made unilateral mistake: only one party has an erroneous belief about a basis assumption, not valid reason to avoid a contract

Responsible corporate officer doctrine

a court may impose criminal liability on a corporate officer who participated in, directed, or merely knew about a given criminal violation

Privileges

a defense that recognizes either a legal or public policy-based immunity from a defamation claim absolute privilege: defendant need not offer any further evidence to assert the defense (gov't officials and judicial officers) qualified privilege: defendant must offer evidence of good faith and be absent of malice (media, fair report privilege, employers)

Foreign Corrupt Practices Act (FCPA)

a law that prohibits U.S. corporations from making illegal payments to public officials of foreign governments to obtain business rights or to enhance their business dealings in those countries

Adverse possession

a party takes title to real estate from another by demonstrating that she has possessed it in a certain way for a certain period of time 1. open, notorious, and visible possession: true title holder is expected to know that adverse possessor has intended to claim ownership and take possession 2. exclusive and actual possession: possessor must show that she was in exclusive control of the property 3. continuous possession: possessor cannot abandon the property for a period of time

Probable cause under the Fourth Amendment

a warrant may be issued based only on probable cause

cause in fact

after establishing that a breach of duty has occurred, the injured party must also prove that the tortfeasor's conduct was the cause in fact of the damages suffered by the injured party

Plain view doctrine

agent obtains evidence by virtue of seeing an object that is in his plain view and the agent has the right to be in the position to have that view does not violate the Fourth Amendment (protection from unlawful search & seizure)

Conspiracy

agreement by two or more persons to commit a criminal act requires a specific intent to achieve the object of the conspiracy but does not require that the act actually be carried out

Condition precedent/condition subsequent

an event that must occur before performance under a contract is due/an event that occurs after the performance under the contract and discharges the parties' obligations

Powers of the EEOC

as an administrative agency, the EEOC uses its rulemaking authority, investigatory powers, and enforcement action as necessary to administer the statutory mandates established by Congress

Self-defense doctrine

certain cases necessitate the use of deadly force to repel an attack in which the defendant reasonably fears that death or substantial harm is about to occur either to the defendant or a third party

Sources of law for services

common law

Strict Liability

concept rooted in the notion that the general public benefits when liability is imposed on those who engage in certain activities that result in harm to another party, even if the activities are undertaken in the most careful manner possible

Nominal consideration

consideration that is stated in a written contract even though it is not actually exchanged

Reformation

court may change the contract by rewriting it to conform to the parties' actual intentions

Bailment relationship

created when the bailor entrusts a bailee to temporarily hold the property, usually for the parties' mutual benefit common law imposes a duty of care and to act reasonably on the bailee

Felonies

crimes that carry one year or more of incarceration

Misdemeanors

crimes that carry up to one year of incarceration

Criminal vs. civil law

criminal: protection of society and prescribes the punishment civil: designed to compensate parties for damages as a result of another's conduct

Liquidated damages

damages that the parties agree to ahead of time

Intentional Torts

defamation, libel, slander, fraudulent misrepresentation, false imprisonment

Zoning

dividing an area into zones or sections reserved for different purposes such as residence and business and manufacturing etc. an exercise of police powers to advance legitimate objectives

Age differential under ADEA

employers that have 20 or more employees are prohibited from discriminating against employees on the basis of their age once employees have reached age 40 age is considered a protected class when employers discriminate against them in favor of a substantially younger employee can make claims on 1) protected-class membership 2) satisfactory job performance 3) adverse job action such as termination or demotion 4) replacement with someone substantially younger or 5) other evidence that indicates that it is more likely than not that age was the reason for adverse action

Specific performance

equitable remedy whereby a court orders the breaching party to render the promised performance by ordering the party to take a specific action

Express vs. implied contracts

express: parties have knowingly and intentionally agreed on the promises and performances implied: agreement is reached by the parties' actions rather than their words

Ways to hold title

fee simple life estate: an ownership interest that lasts for the lifetime of a particular person life tenant: may not sell, pledge, or convey the building in any way during her ownership life estate defeasible: life estate with a restriction attached leasehold estate: grants only a qualified right to use the real estate in an exclusive manner for a limited period of time

Governance of the EEOC

filing a complaint with the EEOC is the first step for a party claiming unlawful employment discrimination. second, in certain cases the EEOC will sue on behalf of an aggrieved employee

Formation of the EEOC

five-member commission whose members are appointed by the president with approval of the Senate

Ponzi scheme

fraudulent investment operation that pays returns to investors from their own money or money paid by subsequent investors rather than from any actual profit earned

Actus reus

guilty act - act requirement, requires the government to prove that a defendant's actions objectively satisfied the elements of a particular offense

Mens rea

guilty mind - mental requirement, requires that the defendant have a requisite degree of culpability with regard to each element of a give crime

duty

imposes a general duty on all parties to act reasonably and not to impart unreasonable risk to others

Exclusionary rule

improperly gathered evidence may not be introduced in a criminal trial

Third party beneficiary

in an assignment or delegation, the third party's rights occur after the formation of the contract. intended beneficiary: has rights to enforce the contract as appropriate incidental beneficiary: cannot sue

Substantial performance

in order to prevail in a substantial performance case, the party trying to enforce the contract must show that she acted in good faith and that any deviation from the required performance was not material

proximate (legal) cause

injured party must prove that 1) tortfeasor's liability was also the closest-in-proximity cause of the damages and 2) the tortfeasor's liability wasn't canceled due to a superseding cause

actual damages

injured party must prove that she has suffered some type of physical harm derived from an injury cause by the tortfeasor

Hybrid contracts

involve terms for both goods and services the source of law is established by determining the predominant thrust of the contract subject matter (statutory law for goods, common law for services)

Faragher/Ellerth Defense

judicially created affirmative defense whereby an employer may avoid vicarious liability by proving that a system was in place that was intended to deter, prevent, report, and correct any harassment. the employer must also prove that the employee failed to take advantage of the preventative or corrective opportunities that the employer provided.

Comprehensive Environmental Response Compensation and Liability Act (CERCLA)

known as Superfund, main provisions center on the notion that cleanup operations for abandoned toxic waste sites are to be funded by a self-sustaining quasi-escrow fund administered by the federal gov't approaches cleanups through either removal or remedial

Statute of frauds

law governing which contracts must be in writing in order to be enforceable primarily applies to 5 types: 1. sale of land 2. cannot be performed in under one year 3. to pay the debt of another 4. marriage 5. sale of goods for $500 or more

Equal Pay Act (1963)

makes it illegal to pay different wages to men and women if they perform equal work in the same workplace plaintiff must demonstrate that 1) employer pays different wages to employees of the opposite sex 2) employees perform equal work on jobs requiring equal skill, effort, and responsibility and 3) the jobs are performed under similar working conditions burden shifts to employer to prove 1) seniority system 2) merit system 3) system pegging earnings to quality or quantity of production or 4) any factor other than sex

Infractions

minor crimes that carry no threat of jail for first offenders

Mislaid, lost and abandoned property

mislaid: intentionally places the property in a certain place and later forgets about it lost: unintentionally parts with the property through either carelessness or neglect abandoned: thrown away or voluntarily forsaken the property

Advertisements

most advertisements are not offers; rather, the law recognizes mass advertisements as an invitation and do not constitute an offer because they do not contain a specific commitment to sell

Elements of a contract

mutual assent, consideration, capacity, and legality consideration: mutual exchange of benefits and detriments - a bargained-for capacity: legal ability to enter contract, minors and mental incapacity have limited power to contract legality: both the subject matter and performance of the contract must be legal

Meeting of the minds

mutual assent; combination of offer and acceptance parties agree to certain promises and obligations

Right against self-incrimination under the Fifth Amendment

no person shall be compelled in any criminal case to be a witness against himself; defendant can decline to testify

breach of duty

once it has been established that one party owes another a general or special duty, the next factor in the analysis is whether or not the party has fulfilled her obligations

Bribery

pay a government official money in order to obtain favorable treatment for a personal or business transaction

Types of property

personal property: tangible and movable, may be owned or leased real property (real estate): land and its extensions (called improvements and fixtures)

Easements (and types)

privilege to use real estate owned by another 1. express grant: usually expressed in writing on the property deed 2. implication/necessity: property is landlocked between other properties and the owner must cross through property of another 3. prescription: privilege is gained through adverse possession

Disparate Impact

prohibits an employer from using a facially neutral practice that has an unlawful adverse impact on members of a protected class. when it first announced this theory in Griggs v. Duke Power Co. the Supreme Court recognized that intent was not always a necessary element to prove discrimination

Definition of a contract

promise or a set of promises enforceable by law

Preexisting duty rule

promises to do what one is already bound to do is not consideration

Fontainebleau v. Eden Roc

rejected the historical English law doctrine of "ancient lights," which provides a right to the free flow of light and air from adjoining land therefore, there is no legal right to the flow of air or light as long as the structure serves a legitimately useful purpose

Fee Simple vs. Fee Simple Defeasible

rights are unrestricted, infinite in duration, and inheritable by the owner's heirs fee simple defeasible imposes certain restrictions, like particular use or fulfillment of conditions, that if violated reverts ownership to the original owner

Applicability of ADA

seeks to eliminate discriminatory employment practices by employers with 15 or more employees against persons with disabilities. plaintiff must show 1) disability 2) is qualified individual and 3) subjected to unlawful discrimination requires employers to make reasonable accommodations so long as they do not cause the employer to suffer an undue hardship defines disability as a physical or mental impairment that substantially limits a person's ability to participate in major life activities even if an individual does not meet the definitional requirements of disability under the ADA, they are still protected if they are regarded as having an impairment by their employer

slander

spoken defamation

Sources of law for goods

statutory law

Embezzlement

taking for one's own use in violation of trust; stealing (of money placed in one's care)

Transaction costs

the costs of defining, monitoring, and enforcing property rights

Puffery

the legal exaggeration of praise, stopping just short of deception, lavished on a product

Mitigation

the rule preventing recovery for reasonably avoidable damages is often called the duty to mitigate parties in a contract take appropriate steps to avoid incurring damages and losses

Void vs. voidable contracts

void: agreement lacks one of the required elements or has not been formed in conformance of the law from the outset voidable: law gives one or more parties the right to cancel an otherwise valid contract

Negligence

when one party fails to act reasonably and harm occurs, even though that party did not intend to cause harm five elements

Novation

when the parties agree to substitute a third party for one of the original parties to the contract, the agreement may be discharged

libel

written defamation