MIE 305 Exam #2

Special Damages

Quantifiable

Sunshine Act

Recognizes the appearance of impropriety that may accompany the decision of government to act in secrecy

What is criminal strict liability?

mens rea does not have to be proven in relation to the actus rea i.e. statutory rape, selling alcohol to a minor, and some traffic violations conduct that violates a duty or involves omission

Formal Adjudication

trial-like process: 1. filing of a complaint 2. respondent answers complaint 3. both parties conduct extensive discovery 4. hearing with an administrative law judge 5. burden of proof is the civil preponderance of evidence standard

Describe the adjudicatory function of administrative agencies

A trial-like procedure that is employed as the principal mechanism agencies use to enforce their actions It is adversarial in nature

First Amendment right to free speech

"Congress shall make no law ... abridging the freedom of speech" Government cannot regulate content but can regulate the time, place, and manner of speech. The Court implemented the Clear and Present Danger Test to determine if the speech can be regulated

Articles of Confederation

1st Constitution of the U.S. 1781-1788 (weaknesses-no executive, no judicial, no power to tax, no power to regulate trade)

Felony

A criminal offense that is punishable by death or imprisonment in a penitentiary A year and a day rule for maximum punishment I.E. aggravated assault, arson, bribery, burglary, embezzlement, forgery, kidnapping, larceny (grand), manslaughter, mayhem, murder, price fixing, rape, robbery

Misdemeanor

A criminal offense, less than a felony, that is punishable by fine or jail sentence (less than a year for maximum punishment) I.E. battery, disorderly conduct, gambling, larceny (petty), prostitution, public disturbance, simple assault, traffic offenses, trespass

Shopkeeper's Privilege

A defense to the tort of false imprisonment for store owners; allows reasonable detention of shoppers upon reasonable suspicion of shoplifting

Structure of the Constitution

A document creating a form of government resting on the principles of federalism and free enterprise. It is composed of a preamble, 7 articles, and 27 amendments. It creates the federal government with 3 distinct branches (legislative, executive, and judicial).It creates a plan for allocating the regulatory powers of both federal and state governments. It creates limitations on the role of the government in regulating the lives of individuals.

Racketeer Influenced & Corrupt Organizations Act

A federal law designed to combat organized crime in the United States. It allows prosecution and civil penalties for racketeering activity performed as part of an ongoing criminal enterprise

Duty

A legal obligation imposed by general law or voluntarily imposed by the creation of a binding promise

Search Warrants

A modified warrant is suggested to administrative agencies to avoid a violation of the 4th Amendment - unreasonable searches and seizures

Tort Law

A non-contractual civil wrong A person's negligence resulting in harm or loss to another, or a series of intentional acts that set out to do harm or loss to another - assault, battery, defamation, conversion of property, interference with various forms of business relationships

Why is criminal law largely a matter of statute these days?

A statute is a law enacted by a legislature. Criminal statutes are put in place for the overall protection of society from conduct perceived as harmful, threatening, or endangering to the property, health, safety, and moral welfare. There are six main purpose classifications of crimes: 1. protection of the person from harm - assault and battery, kidnapping, manslaughter, mayhem, murder, sexual crimes 2. protection of property - arson, blackmail, burglary, embezzlement, extortion, forgery, larceny, robbery 3. protection from sexual abuse - adultery, bigamy, incest, rape, sodomy 4. protection of government - bribery of officials, sabotage, treason 5. protection of the courts - bribery of witnesses, judges, jurors, perjury 6. protection of the public interest - antitrust, disorderly conduct, food and drug laws, gambling, liquor licenses and drunkenness, narcotics, obscenity, pollution

What is enabling legislation?

A statute that creates an administrative agency and determines the scope of power granted to that agency and usually provides that the president or other member of the executive branch appoint the leadership to the agency

Nominal Damages

A token amount awarded in deference to commission of a tort in which no damages were suffered by plaintiff or minimal/quickly recoverable damage was suffered

Conspiracy

An agreement by two or more persons to commit a crime

Where does the Dormant Commerce Clause come from?

It is only used when Congress is legislatively silent on a matter. It was not actually enumerated in the Constitution, but it is the result of case interpretation and application of precedents from the Supreme Court itself. The central rationale of it is to prohibit state or municipal laws whose object is local economic protectionism.

What are administrative agencies and how can they be classified or categorized?

An entity of government charged with implementing provisions of a statute through a process of enforcement and adjudication These can be broken down into executive and independent agencies. Executive agencies are departments of cabinets and sub-agencies that are politically affiliated with the president. Independent agencies include government corporations and regulatory agencies. Government corporations are agencies set up to provide critical goods and services to the American economy, such as Amtrak, USPS, FDIC, and CPB. Regulatory agencies regulate economic activity or behaviors, such as the FTC, NLRB, and SEC.

Plaintiff's Contribution

Bars the plaintiff from recovering any damages if the plaintiff's own fault contributed to the injury

Exhaustion Doctrine

Before a party can proceed to court, all methods of adjudicating the dispute within the administrative agency's established processes must be employed

Public Policy purposes of tort law

Compensation and Risk-Shifting: an innocent party who is harmed by the unreasonable acts of another should not bear the burden of economic loss from that harm. Tort law makes the victim whole as best the awarding of money damages can do Deterrence: Tort law says to those who may wish to cause intentional harm that it will come at a cost; it says to others in society that one must take reasonable care around an in dealing with others, lest one's negligence cause harm to them (at one's expense in damages)

What does it say or do that's important for modern business operations?

It prevents a business from economically discriminating against interstate commerce in favor of their local economy and/or a public policy goal

What's the non-delegation doctrine and why was it important in J.W. Hampton, Jr. Co. v. U.S.?

Congress can't create an administrative agency and give it a broad, general grant of power This was important in Chief Justice Taft's majority opinion, which stated that legislative power was exercised in creation and prosper delegation of oversight power to agency but Congress must provide intelligible principle - agency is to carry out its mission (understands public charge, power, and limits) The case firmly establishes this doctrine

Why was the Administrative Procedure Act passed? What does it do, when does it apply, and how does it work?

Congress passed this in 1946 for the purpose of guaranteeing uniformity and fairness to all who are called to deal with federal administrative agencies It requires agencies to keep the public informed of their organization, procedures, and rules, provides for public participation in the rulemaking process, establishes uniform standards for the conduct of formal rulemaking and adjudication, and defines the scope of judicial review It controls all aspects of agency activity unless a particular agency's enabling legislation or other statute specifically exempts the agency from following APA edicts All states have adopted it at whole or large portions of it The preamble states that its purpose is to improve the administration of justice by prescribing fair administrative procedure

What are the exceptions of the Dormant Commerce Clause?

Congress taking action on the matter at hand nullifies the use of the DCC. The market participant exception states that a states that a state may favor in-state interests to the detriment of out-of-state interests through a government-owned business or industry that is competing with others in a free economic system (state discrimination not enforced through regulatory mechanism but rather a competitive practice) - i.e. in-state v. out-of-state college tuition

Interstate Commerce Powers of Congress

Congress' substantial legislative and regulatory power over trade between the states and intrastate activity substantially affect interstate commerce

Necessary and Proper Clause

Constitutional clause that gives congress the power to make all laws "necessary and proper" for executing its powers

Separation of Powers

Constitutional mandate that requires branches of government, with each branch charged with performing certain functions

State Action

Constitutional protections embedded in selective provisions of amendments to the Constitution that apply only to instances where the government has acted

Supremacy Clause

Constitutional provision mandating that federal law is superior to state law

Stafford v. Wallace

Dealt with intrastate activity affecting interstate commerce (stream of commerce/ripple effects). The Court creates the stream of commerce standard for gauging an intrastate actor's effect on interstate commerce.

What is the Park (RCO) Doctrine and why is it increasingly important?

Developed in U.S. v. Park and implemented after U.S. v. Dotterweich Deals with the imposition of strict liability in business crimes A federal prosecutorial doctrine which holds that some business acts or omissions with significant potential to harm the public (largely FDCA violations are essentially strict liability offenses A Responsible Corporate Officer may be held personally criminally liable for them

Federalism

Doctrine under which lawmaking is divided between a federal government and a state government

Product Liability Cases

Elements: 1. product as shipped and sold had an unreasonably dangerous effect (design, manufacturing, warnings, instructions) 2. the defect caused the injury or damage Defenses: 1. assumption of risk with known defect 2. owner modification or unintended use 3. modification or misuse by third party ALI's Restatement of Torts (2nd) laid application of strict liability: 1. rationale: places burden on manufacturer to take greater care in creating/marketing of products for profit, burden of economic loss more easily borne by mfgr/distributor/seller through insurance

Freedom of Information Act

Empowers private citizens with the tools to request information from the federal government Exceptions: 1. national security and foreign policy 2. trade secrets and financial information 3. inter-agency documents detailing internal deliberations or agency personnel practices 4. unwarranted invasions of personal privacy 5. law enforcement information

Political Speech

Entitled to the greatest protection of all speech, it includes speech associated with matters of public interest

What are the rules on criminal liability for a business if an employee commits a crime?

Exceptions for default rule: if the act was committed within the course and scope of employment, in furtherance of the business interests of the business (knowledge or training) Doctrine of Respondeat Superior: to let the master answer for the wrongdoings of the servant when the latter was serving the purpose of the former If there is a rational relationship between the employee's criminal act and his or her corporate duties, then the corporation will be criminally liable

negligance

Factors: 1. a duty imposed on a person in favor of others 2. an act or omission that constitutes a breach of this duty 3. an actual cause 4. a proximate cause 5. an injury or damage

Takings

Federal and state governments have the power of eminent domain. In order for a society to grow and prosper, the government must be able to claim land for public uses, including parks, roads, and government buildings. A provision in the 5th Amendment guarantees that where the government takes property for public use, the private owner is entitled to just compensation. The notion of property extends beyond real property - trade secrets and intangible property. The governmental action is broadly define and must be for public use.

Intervening Cause

Foreseeable to tortfeasor Liable

Intermediate Scrutiny

Government action is constitutional under the equal protection clause where legislation substantially related to an important purpose of government Classification scheme based on sex or gender

Police Powers

Government powers, including the areas of public safety, health, welfare, and morals, which are traditionally domains that are regulated by state government

Rational Basis

Governmental action is constitutional under the equal protection clause where legislation is reasonably related to a legitimate purpose of government Where government regulation is based on social welfare and economic matters

Strict Scrutiny

Governmental action is constitutional under the equal protection clause where legislation necessarily relates to a compelling interest of government Fundamental rights include the right to vote and the right to engage in interstate travel A suspect class includes race, religion, and national origin

Chevron rule

How much deference should a court give to an administrative agency's own interpretation of a law that it is charged with administering?

Why does a conspiracy charge not require the act the parties are conspiring to have occurred?

In a conspiracy case, the criminal act - actus rea - is the communication between two parties done in a manner so as to facilitate their cooperation or organization in carrying out another crime

Affirmative Defenses in criminal law

Insanity: M'Naghten Rule that questions whether the accused can distinguish between right and wrong Statute of Limitations: time limit on prosecution for criminal offenses exists (NC: 2 years for misdemeanors and none for felonies)

Conversion

Intentional and substantial interference with a person's chattels to the extent that the wrongdoer should be liable for the full value of the chattel(s), such as with an intent to permanently deprive the rightful owner of the objects So significant

Trespass to Chattels

Intentional interference with another's use or possession of chattels in which they have use or possession rights May be innocent or willful

Interference with a Contractual Relationship

Intentionally inducing a party to a known contract with a third party to breach it, or actively and intentionally interfering with its performance: 1. must be a valid contract between two parties 2. defendant knew of existing contract 3. defendant acted intentionally to induce the other party to breach the contract 4. the breach caused the plaintiff to suffer damages

Intentional Torts

Involves interference with the personal freedom of an individual (assault, battery, false imprisonment, mental distress), interference with property rights (trespass to land, trespass to chattels, conversion), interference with economic relations (intentional interference with a contractual relationship, intentional interference with a business relationship), and wrongful communications (defamation, slander, libel, invasion of privacy)

U.S. v. Dotterweich

Joseph Dotterweich was the general manager and president of a pharmaceutical company which, it was later discovered, violated the federal Food, Drug, & Cosmetic Act by purchasing a variety of drugs which were then repackaged, rebranded, and adulterated in various ways before being sent on to market with the company's label. No evidence was presented at trial that Dotterweich was actively involved in the scheme nor that he had any actual knowledge that it was going on within the company. In affirming Dotterweich's personal conviction on appeal, the Supreme Court noted that he shared responsibility of the business process that resulted in unlawful distribution and as a responsible corporate officer who had a duty to know what his company was doing at all times, he had a responsible relation to a public danger for which he had failed at oversight. The Court made it clear that Dotterweich's conduct did not even necessarily have to be considered reckless or negligent to be culpable; it was enough that the legislative intent of FDCA made RCOs of corporations criminally responsible as the corporate body itself for violations of the Act.

Dormant Commerce Clause

Judicially-created doctrine that forbids states from acting in a manner that unreasonably impedes commerce among the states

Interference with a Business Relationship

Largely the same rules as for interference with a contract; the interference must be intentional and active, but this tort is applicable where there is no contract with which to interfere. Courts will also give defendants a greater range of action here, owing to the often blurry line between aggressive but lawful marketing and egregious action that crosses a line of acceptability protect expectancies of future contractual relationships

Castle Doctrine

Modifies the duty to retreat in some circumstances by saying that reasonable force can be used to meet equivalent force against an intruder challenging one's lawful right to be in a private place: 1. excessive force does not apply 2. intruder must be acting unlawfully 3. there must be a reasonable apprehension of bodily harm 4. no baiting, entrapment, or inducement to intruder 5. statutory modifications - stand your ground (public spaces) Prohibits man-made death traps: mechanical means of delivery of deadly force are generally not allowed under any self-defense doctrine and may expose the perpetrator of the trap to serious criminal and civil liability

What type of damages remedy a tort?

Money damages against the tortfeasor in tort law make the victim whole again Compensatory Damages: special, general, treble Punitive Damages

Commerce Clause

Provision of the Constitution that empowers the federal government with the ability to regulate interstate commerce

Due Process

Provisions of the Constitution that are associated with the 5th and 14th Amendment that prohibit the government from depriving an individual or legal entity of life, liberty, or property without due process of the law

Tortfeasor

One who commits a tort

Describe the enforcement function of administrative agencies

Perform powers to enforce administrative rules and they do not need probably cause in order to do so Agencies may take action based on a tip provided by a whistle-blower or simply to ascertain the extent to which the rules are being followed two mechanisms: subpoenas and inspections

Affirmative defense in tort law

Plaintiff's Contribution Assumption of Risk Statute of Limitations

Concurrent Powers

Powers held jointly by the national and state governments

Implied Powers

Powers inferred from the express powers that allow Congress to carry out its functions

Enumerated Powers

Powers specifically given to Congress in the Constitution; including the power to collect taxes, coin money, regulate foreign and interstate commerce, and declare war

Treble Damages

Precedent

Informal Rulemaking

Process of creating agency regulations that generally does not include a formal hearing notice and comment rulemaking broken into three steps: 1. the agency provides notice of the proposed rule 2. agency invites interested parties to participate in a comment period during which written submissions may be presented to the agency 3. publication of the final rule in the Federal Register

Formal Rulemaking

Process of creating agency regulations that generally includes a formal hearing with four major steps: 1. members of the public are given notice of the proposed rule 2. mandatory hearing requiring the agency to make formal presentations and allow others to cross-examine those individuals testifying on behalf of the proposed rule and industry members opposing the proffered rule to make a presentation 3. a detailed report is prepared by the agency with extensive coverage of all findings developed as a result of evidence presented 4. publishing the final rule in the Federal Register where the administrative rule becomes legal unless a court finds that the agency's action was unsupported by substantial evidence

Subpoenas

Process that requires a person to testify or provide physical evidence at a hearing The court will issue one if the following factors are met: establish that the purpose of the investigation is legitimate, possess the power to conduct an investigation of the type specified, describe the information being sought, explain the relationship between the purpose of the investigation and the information being sought, and show that the information being demanded does not create an unreasonable burden on the individual or entity possessing such information

Small Business Regulatory Enforcement Fairness Act

Represents an even more small business friendly approach to administrative rules and regulations than the RFA Represents continuing congressional ambivalence at the notion that excessive government regulation could stifle or even destroy existing small businesses and start-ups

Regulatory Flexibility Act

Required administrative agencies to conduct a regulatory flexibility analysis prior to imposing new rules to more specifically determine the impact said rules would have on entrepreneurial small-scale businesses in the U.S.

Open Government Act

Requires that each agency designate a FOIA Public Liaison to assist in resolving disputes, that all agencies standardize annual reporting requirements for each agency's FOIA program, and that agencies specify the exact exemption they are asserting for any deletion make in disclosed documents

Cause-in-Fact

Requires the plaintiff to show a cause and effect relationship between the defendant's breach of duty and the subsequent plaintiff's injury at issue

Describe the rule-making function of administrative agencies

Revolves around studying a particular social problem, formulating a draft of administrative rules, soliciting public comments on proposed rules, and promulgating rules

Right to a Jury

SCOTUS has interpreted the 7th Amendment to apply to adjudications involving an individual or business being accused of a crime

Conversion v. Trespass to Chattels

Significance Factors: extent and duration of the interference, the defendant's motives, the amount of actual damages to the goods, and the inconvenience and other harm suffered by the plaintiff

Commercial Speech

Speech that relates to a business transaction (Some commercial speech, primarily speech that misleads, receives no protection from the First Amendment. Other types of commercial speech receive an intermediate level of protection.)

Shreveport Rate Case

Supported federal power to regulate the rates charged by railroads even on intrastate commerce, when their connection with interstate commerce was such that a failure to regulate might burden interstate commerce

Difference between the Articles and the Amendments

The Articles had only one branch of government - the legislative branch. The Articles had power concentrated at the state level, acting as a liaison between the central government and the citizens. So, the Constitution moved towards strengthening the central government.

Wickard v. Filburn

The Court created and applied the aggregation doctrine to Filburn's plea, which was that he grew more wheat than his quota for personal consumption even though it violated the Agricultural Adjustment Act. One farmer's overproduction may not have a dramatic effect on interstate commerce, but, when multiple farmers doing the same thing is aggregated, the burden on interstate commerce becomes more severe.

Gibbons v. Ogden

The Court expanded commerce from navigation to include aspects of the entire commercial transaction. The Court still believes that Congress has authority over interstate commerce and intrastate commerce affecting interstate commerce. Congress' power over commerce is plenary.

U.S. v. Lopez

The Court ruled against Congress use of the interstate commerce clause in its passage of the federal Gun Free School Zone Act of 1990, on grounds that the connections Congress attempted to make between the Act and an effect on interstate commerce were too tenuous or remote to take seriously. At the same time, the Act had a dramatic and unconstitutional effect on preempting school safety, traditionally a strong general police power of the states.

Kelo v. City of New London

The case that expanded the doctrine of eminent domain resulted in many states rushing to implement new statutory protections for landowners in their state as a way of attempting to protect their state's residents from eminent domain abuse

McCulloch v. Maryland

The central legal question was whether Congress had and could legislate under a series of implied powers that it believed the Necessary and Proper Clause gave it to facilitate its enumerated powers further up in Article I, Section 8. The Court ruled that the Necessary and Proper Clause was a broad grant of power to Congress, not a restriction.

Plea Bargain

The defendant strikes a deal with the prosecutor in which the defendant will plead guilty to the crime and remove the need for a full trial if, in return, the prosecutor will recommend a shorter sentence The use of prosecutorial discretion Charge bargaining: pleads guilty to less severe offense with lighter sentences Count bargaining: pleads guilty to one count of the offenses and the prosecutor will drop the rest Sentence bargaining: in exchange for the defendant's guilty plea on a charge, the prosecution agrees to recommend to the court a lighter sentence for the defendant than it might otherwise usually seek

How are administrative agencies created?

The enactment by Congress of a statute creating a federal administrative agency is called enabling legislation The delegation doctrine establishes that if Congress collectively decides to hand certain of their decision-making powers to other branches to execute on their behalf, they must pass a law Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power

Subject matter of the Articles

The legislative branch was created. It dealt with a confederal power base with two levels of government - state and federal. It led to a recession and depression then Shay's Rebellion.

Proximate Cause

The negligent action that is close to the resulting injury or damage

Right

The phrase legal right is a correlative of the phrase legal duty A person has a legal right if, upon the breach of the corresponding legal duty, that person can secure a remedy in a judicial proceeding

Contributory Negligence

The plaintiff may not recover damages if their own fault contributed to the injury

Assumption of Risk

The plaintiff voluntarily assumes a known risk of harm

Comparative Fault

The plaintiff's contribution does not bar recovery The fault of the defendant is compared to the fault of the plaintiff and the plaintiff's award is reduced proportionately

Self-Incrimination

The right against self-incrimination does not extend to corporations, so the protection is moderate with regards to administrative agency investigations

USA Patriot Act

The statute allows the federal government significant expansion of traditional programs aimed at wiretaps, searches of business records, and many other aspects of terrorism-related investigations Also known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

Hybrid Rulemaking

This format is a blend of formal and informal requiring notice and a hearing (less extensive) the hearing does not include cross-examination of witnesses Courts apply the substantial evidence test

Inspections

Two purposes: determine if statutes or administrative rules have been violated and to gain valuable information that can cause the agency to propose new rules, alter existing rules, or make other adjustments

Checks and Balances

Under the Constitution, the process by which each branch of government restrains the power of another branch

Superceding Cause

Unforeseeable to tortfeasor Absolves liability for harms attributable

General Damages

Unquantifiable with precision usually a multiplier of special

What are the rules on corporate liability and liability upon officers and directors personally for criminal acts within their corporate organization?

When a company commits a criminal wrongdoing and it is unclear who committed it, the government can go after the highest executive Default rule: individuals are responsible for their own criminal acts even if done in a business setting

Amendment-Enforcing Powers

those powers contained in some constitutional amendments that provide Congress with the ability to enforce them

subpoena ad testificandum

an order from the agency to compel an unwilling witness to testify under oath at an administrative agency hearing

subpoena duces tecum

an order used to force an individual or entity to produce documents or other physical evidence that might be germane to an investigation

Procedural Due Process

consists of: (1) notice that the government is going to act and why, (2) a hearing before any governmental action takes place so that the individual or entity with the right has an opportunity to be heard, and (3) an ability to appeal the determination made at the hearing

Substantive Due Process

deals with fairness - the rational basis test is used to determine if the government acted in a fair manner

Punitive Damages

exemplary damages to make an example of tortfeasor Not available unless statute allows in certain types of cases and/or defendant's conduct was particularly gross or willful and wanton Up to 4 times compensatory damages

Types of Rules

internal rules (policies and procedures an administrative agency adopts for its in-house operation), procedural rules (provide the public with the processes associated with various agency functions and those opportunities for interchange with individuals and commercial enterprises), interpretive rules (guidelines from an administrative agency to those members of society regulated by the agency), and legislative rules (a direct extension of the legislative act an agency is created to administer and have the force and effect of law)

Criminal Law

source of law = statute who brings suit = government/the state burden of proof = beyond a reasonable doubt remedy = punishment nature = protect society

Civil Law

source of law = statute or common law who brings suit = individual or entity that suffered harm burden of proof = preponderance of the evidence remedy = usually damages but also judicial decree forcing performance or forbidding activity nature = provide compensation or other relief

Is intent always required for a crime?

strict liability crimes

Actus Reus

the guilty act criminal act

Mens Rea

the guilty mind criminal intent