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