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This 20 page Study Guide was uploaded by Daniel Hong on Monday October 19, 2015. The Study Guide belongs to LAW 101 at Pace University taught by Colella in Fall 2015. Since its upload, it has received 145 views. For similar materials see Business Law 1 in Law at Pace University.
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Date Created: 10/19/15
Chapter 1 What is law 0 Definition Rules that society establishes to govern the conduct of individuals and the relationships that is amongst them 0 Includes treaties made by the US Who can govern laws 0 Courts and administrative agencies can govern laws 0 Known as Bundle of Rights Rights and Duties c0exist 0 Right capacity that is legal for an individual to perform or to refrain from an action 0 Duty obligation of law for an individual to perform or to refrain from an action 0 Right legal capacity Duty Obligation of Law Individual Laws 0 Individuals that are given certain right by the US Constitution 0 Constitution body of principles that establishes the structure of the government and the relationship of that government to the people being governed Town 9 citizens of that town City 9 citizens of that city Governor 9 to the state 0 Which includes 0 Freedom of Speech 0 Right to Due Process 0 Right to have a hearing before any freedom is taken away innocent before proven guilty 0 Right to vote 0 Without individual rights then there wouldn t be a structure of the government and other laws Right of Privacy Fourth Amendment The Right to Privacy 2 Components 0 Right to be secure against unreasonable searches and seizures by the government without given permission 0 Protects individuals from the intrusion from others Because of technology nowadays the law has to step in and reestablish the rights of privacy Sources of Law Constitutional Law 0 Branch of law that is based on the constitution for a particular level of government 0 constitution generally a combination of written documents and the practices and customs 0 Each state 2 constitutions are in force 0 State Constitution 0 Federal Constitution Statutory Law 0 Includes legislative acts Who enacts Statutory Laws 0 Congress and State Legislatures De nition Legislative acts a declaring commanding or prohibiting something Administrative Law De nition Rules that are made by the state and federal administrative agencies Example of agencies 0 Securities 0 Exchange Commissions 0 National Labor Relations Board Private Law De nition Rules and regulations parties come to an accord as part of their contractual relationships 0 Usually created by individuals and businesses Case Law Plays three important roles 0 Clarifying the meaning of the statutes many statutes depend on the common law 0 Courts play in creating precedents a decision of a court that stands as the law for a speci c problem in the future 0 Courts plays by addressing the issues long standing issues Common Law De nition body of unwritten principles that are based upon the usage and customs of the community recognized and enforced by the courts Law Classifications Substantive LaW law that de nes rights and liabilities 0 de nes Procedural Laws law that must be followed in enforcing rights and liabilities 0 must be followed in enforcing Criminal Law wrongs de ned in society Civil Law rights of one person de ned against another Equity body of law that provides justice when the law does not offer adequate remedy Chapter 2 What is a court and its systems Court a tribunal that is established by government to hear and to decide the matters properly 0 Presenting your case settling it 0 Provides remedies when something wrong has been committed Jurisdiction when courts actually hear the case being presented Types of Jurisdictions 0 Subject Matter Jurisdiction where you have judicial authority to hear a case 0 Original Jurisdiction the authority to hear a controversy only when it is rst brought to court 0 General Jurisdiction power to hear and to decide that involves legal rights and duties amongst controversies 0 Limited Special Jurisdiction to only hear particular kinds of cases meaning not all cases are heard in this case 0 Appellate Jurisdiction power of a court to hear and decide a given class of cases on appeal taking a case to a reviewing court to determine whether the decision of the lower court or the administrative agency was correct from another court or administrative agency Reversible Error a defect in court proceedings of so serious that a nature on the appeal would be set aside to a lower court An appellate court can af rm reverse a lower court s decision remand for another trial or an additional hearing What is the Federal Court System Consists of 3 levels of courts 0 US Supreme Court appellate jurisdiction 0 US Courts of Appeals federal district and appellate jurisdiction 0 Federal District Courts general trial courts of the federal system general trial courts of the federal system The federal district can review a case to give its nal decisions En Banc term used when the full panel of judges on the appellate court hears a case US Supreme Court 0 Does not hear all cases from the federal courts of appeals 0 Has a process called granting writ of certiorari order by the US Supreme Court granting a right of review by the court of a lower court decision State Court Systems 0 General Trial Courts usually hear both criminal and civil cases trial courts of general jurisdiction involving legal rights and duties 0 Specialty Courts courts with limited jurisdiction hears only particular cases 0 City municipal and justice courts cities and counties that may have lesser courts with limited jurisdiction 0 Small Claims Courts the county or city level of limited jurisdiction and resolves disputes between parties when those disputes do not exceed a minimal level no lawyers are permitted they represent themselves the parties 0 State Appellate Courts they review the decisions of lower courts in that state 0 State Supreme Courts the highest court in most states What are the Procedures of Court But rst what is a plaintiff prosecutor defendant judge and a jury Plaintiff party who initiates the lawsuit The accuser Prosecutor party who originates a criminal proceeding Defendant party charged with a violation of civil or criminal law in a proceeding The accused Judge primary of cer of the court Jury a body of citizens sworn by the court to determine the verdict the issues of fact that is submitted to them AttorneyRight Privilege right of individual t have discussions with his or her attorney that is kept private Procedure of a Lawsuit The Steps 0 Commencement of a lawsuit ling a complaint is how a lawsuit starts The description of what happened 0 Service of Process the process which is the court summons for the defendant that also includes a copy of the complaint 0 Defendant s Response and the Pleadings the defendant is then required to respond 0 Discovery requires that each side to name its potential witness and provide each side to questions those witnesses in advance of the trial Deposition testimony of a witness taken out of court before the person is authorized to administer oaths What is the procedure of the trial 0 Selecting a jury the jurors are selected by the judge and lawyers by questioning them But the jurors cannot have any bias The selection of the jury is called vior dire examination 0 Opening Statements the lawyers make their opening statements to the jury to start off the trial by presenting the puzzle of the evidence in various forms that is within the frame 0 Presentation of the Evidence can consist of documents testimony expert testimony medical information and even physical evidence Direct Examination examination of a witness by his or her attorney CrossExamination examination made of a witness by the attorney for the adverse party Redirect Examination the questioning after the crossexamination Recross Examination examination by the other side s attorney that follows the redirect examination 0 Motion for a Directed Verdict asking the court to grant a verdict because of the evidence that is presented are true then there is either no basis for recovery or no defense to recover 0 Closing Arguments or Summation after both parties and evidence have been presented then each attorney makes a closing argument Summation summarizing the case and urges the jury to reach a particular verdict 0 Motion for Mistrial court s declaration that can terminate a trial and postpones it to a future date Injustice is at most when necessary to avoid 0 Jury Instructions and Verdict the court giving the jury instructions on the appropriate law to apply the facts that were presented This is all to have a verdict 0 Motion for New Trial Motion for Judgement when the verdict is completely wrong Recovery of Costs and Attorney Fees Cost and fees of everyone the lawyer and attorney Execution of Judgement the losing party must pay the judgement Execution accomplished by the seizure and sale of the losing party s assets Garnishment common method of satisfying a judgement Arbitration the settlement of disputed questions Arbitrators disinterested people selected by the parties to dispute by hearing evidence and to determine a resolution they present the fact before trained experts that can affect the nature and outcome of the dispute Meditation settlement of a dispute through the use of a messenger but that messenger is someone who is neutral Reference to a Third Person a third person or a committee makes an out of court determination of the rights of the persons That allows a nonparty to resolve the dispute Association Tribunal created by the group or association disposes of the matter A court created by a trade association or group for the resolution of disputes among its members Summary Jury Trial a mock trial for parties to get a feel of What their cases are going to be like and how their cases will play to a jury As if it s a practice run RentaJudge dispute resolution through private courts with judges paid to be referees for the cases Minitrial a trial that is not full Held on portions of the case or certain issues of the case The important crucial parts of the case Judicial Triage a court management tool that is used by judges to expedite certain cases From experiencing heavy caseloads Chapter 4 Federal Systems a central government that has power to address national concerns What is a Constitution 0 Written document that forms the structure of the government and the relationships to the people 0 The US Constitution was adopted in 1789 by 13 colonies What are the Branches of Government Tripartite three part government 0 Legislative Branch Congress makes the laws 0 Executive Branch The President to execute or enforce the laws 0 Judicial Branch Courts to interpret the laws Bicameral twohouse consists of the Senate and the House of Representatives Delegated Powers powers expressly granted the national government by the Constitution Delegated Powers Shared Powers both the state and national governments hold powers The powers are delegated by both of them State Police Power in order for the states to protect the general welfare health safety and the morals of the people the states have the power to adopt laws And they have authorities to protect these called the police power Prohibited Powers both states and the federal governments from doing certain things that can be bad the Constitution prohibits them from doing so To keep things in control The Constitution Amending and Interpreting It Form the day it was rst made to now the Constitution has gone through changes Bedrock View strict constructioni st interpretation of a constitution LivingDocument View term that is used when a constitution is interpreted according to changes in conditions The Constitution has been amended in three different ways 0 Expressly 0 Interpretation 0 Practice By interpreting the Constitution the US Supreme Court has made the greatest changes to it The US Constitution has 4 characteristics 0 Strong Government highly regulated are business enterprises and the economy is controlled though the monetary policy 0 Strong President the president is the political leader of the party who exerts strong in uence on the process of lawmaking 0 Eclipse of the States all levels of government have powers that they never possessed before under constitutional interpretations 0 Administrative Agencies virtually unheard of in 1789 these units of government And the Constitution did not mention them at all But these agencies have had a signi cant amount of power that is delegated to them Commerce Clause section of the US Constitution that allocates business regulations between federal and state governments The Constitutional Limitations on Government By both the fth and fourteenth amendment the power of the government is limited Due Process Clause a guarantee of protection against the loss of property or rights without the chance to ever be heard 0 Due process does not require a trial on every issue of rights Not only does the Bill of Rights protects individuals but it also for corporations Chapter 21 What is Personal Property Property the word usually refers to a piece of land thing or an object 0 Includes the rights of any person to possess use enjoy and dispose of that property Real Property lands and things that are embedded in the land 0 Example oil tanks Personal Property things that are movable intangible or rights 0 Example writings computers inventions and ideas 0 It consists whole or fractional rights in the things that are tangible and moveable Claims and debts Intangible property rights What is a Gift Gift title to an owner 5 personal property voluntarily transferred by a party not receiving anything in exchange Basically I m giving this to you Donor person giving something Donee the person getting the gift recipient Inter Vivos Gift any transaction that takes place between living persons and creates rights prior to the death of any of them In order for a gift to be a gift there must be an intent Then the transfer title is given As well as a delivery is required for a gift to be a gift If the delivery is failed then the gift will become an ineffective gift Donor s Death this is when the gift fails if the donor dies Because a step of a gift is missing Gift Causa Mortis when the donor contemplating imminent death delivers the personal property to the donee with the intention that the person receiving that gist will accept it Conditional Gifts a gift being in subject to a condition 0 Example this car can be yours when you graduate college Anatomical Gifts Parts of someone 5 body can be considered a gift 0 Example a kidney transplant 0 The gift may be made at a school hospital or an organ bank What happens when vou find a lost Dronertv When you find it in a public space the nder of that property must hand it to the person in charge of that public space It would be mo st likely that the owner of that missing property did not leave it there intentionally Statutory Change if the owner of that missing property does not come within a period of time to retrieve that missing property then the nder of it can own it or sell it Occupation of Personal Property 0 A property is considered abandoned only when the owner relinquishes the possession and has the intention to disclaim title to it 0 When it comes to wild animals people do not have title to them Meaning that the wild animals are owned by no one Escheat transfer to the state of the title to a decedent 5 property when the owner of the property dies intestate and is not survived by anyone capable of taking the property as heir There is a lot more to it when owning something 0 When there is only one owner than it is called severalty 0 But when there is two or more persons that hold rights and interests in the same property then it is called cotenancy o Tenancy in Common relationships that eXists when two or more persons own undivided interests in property 0 Joint Tenancy this is when there are two or more ownerships but in this case there is a right of survivorship Meaning when a death of joint tenant then the remaining tenant takes the share of the deceased tenant o Tenancy by Entirety the transfer of property to both the husband and wife 0 Community Property under the law of some states contenancy held by the husband and wife in property acquired during their marriage 0 Prima Facie it is evidence that if it is believed then it can be suf cient by itself to lead to a particular decision What is a Bailment Relationship when one person delivers possession of personal property to another that is in accord o Bailor the person that turns over the possession of a property 0 Bailee the person who accepts the possession of a property from the bailor A Bailment can only happen when these elements are met 0 Agreement this is what a bailment is based on A contract of the bail and the actual bailing of the property 0 Delivery and Acceptance there must be an acceptance of both parties As well as a full deliverance from the bailor to the bailee The Bailor is usually the owner Bailment for Mutual Benefit a bailment in which the bailor and the bailee derive a bene t from the bailment Gratuitous Bailment a bailment in which the bailee does not receive any compensation or any advantage Constructive Bailment a bailment that is imposed by law as opposed to one created by contract Chapter 49 What exactly is Real Property 0 It is land and all rights in the land 0 It also has special characteristics of permanence and uniqueness Land earth which includes everything that is attached to earth Easement it is permanent right that one has in the land of another 0 Example I need to cut across your lawn to get to school Dominant Tenement land that is bene ted by easement Servient Tenement land that is subject to easement 0 Example NYC in front of Pace University that large area Easement by Implication an easement that is not speci cally created by deed that arises from the circumstances of the parties and the land location and access Way of Necessity the grantee 5 right to use land that us retained by the grantor for going to and from the conveyed land Prescription it is an acquisition of a right to use the land of another Profit is the right to take a part of the soil or produce of another 5 land 0 Example wood and water Licenses a personal privilege to do some acts 0 This is not an interest in the land Liens it is a claim or a right 0 Arises by voluntary act of the owner of the land 0 Tax Liens 0 Judgment Liens o Mechanic s Liens Fixture 0 Something that is attached to the earth or a building that it is in a way to be considered a part of real property 0 Example fridges 0 Sometimes there can be xtures that are not xture things that are not bolted to the oor 0 Trade Fixtures are equipment that are attached to the building like a rented place that is there permanently When it comes to land ownership fee simple estate is the highest level with full interest of unlimited duration Life Estate and estate for the duration of a life time Leasehold Estate interest of a tenant in rented land The largest estate that is possible is called estate in fee Who can be considered a trespasser A trespasser is someone who is on a land without the owner s permission Even if an object that belongs to you is one someone else 5 property it can still be considered trespassing Invitees people who are invited onto someone else 5 property Multiple Ownerships Concurrent Interests in the same time interests have eXisted Condominiums a combination of coownership and individual ownership When it comes to a Deed there is a lot to it What is a Deed 0 An instrument that is used when the grantor who is the owner of the land transfers the title to the grantee Types of Deeds 0 Quitclaim Deeds warranty deeds when the grantor transfers a speci c estate or interest to the grantee and makes one or more of the covenants of title Deeds can be Delivered and Accepted Different Types of Statutes 0 Race Statutes statute under when the rst party to record the deed can hold the title to it 0 Notice Statute when the last good faith or bona de purchaser holds the title 0 Noticerace Statute when the rst bona de purchaser to record the deed can hold the title Eminent Domain for a public purpose the property is taken from its private owner 0 Does not mean that the government just takes it with no good reason 0 A compensation is made for it Hostile possession or taking it with force is known as adverse possession What is a Mortgag When interest is given to the land and the owner has to repay it Mortgager the property owner Mortgagee the person who receives the security When it comes to a mortgagglhere are 3 ch cteristics 0 Termination of the mortgagee 5 interest of the obligation 5 performance of the mortgage 0 The right of the mortgagee to enforce the mortgage 0 The mortgagor 5 right to redeem or to regain the property Reverse Mortgage it is a mortgage when the owners get their home over a period of time and return the house to the lender when it comes to their deaths Foreclosure this is when the mortgagor is refrained from redeeming the property Chapter 8 What is a Crime It is basically a Violation of the law Something that you have done bad against the law A misconduct Misdemeanor of less than one year sentence a criminal offense Felony a criminal offense that is punishable by con nement in prison for more than one year or by death But in order for a crime to be a crime there needs to be 2 elements 0 Mental state to commit it 0 An act or an omission When there is a criminal act there are always those who are responsible Corporate Liability this is when an employee does something bad then the corporation is held responsible for that employee s actions For those of business and nonbusiness Business the manager or the higher of cer is held responsible for their employee s actions NonBusiness the person who committed the action is held responsible Federal Sentencing Guidelines these are federal standards that are used by judges in determining sentences that are mandatory for those who are convicted of federal crimes Whatare WhiteCollar Crimes These are known to the world as generally business crimes They do not cause any harm to anyone or property What is a conspiracy This is an agreement between 2 or more people to commit something that is unlawful Examples of Federal Crimes 0 Smuggling 0 Shipment of improper goods 0 Drug dealing Security Crimes security are there to protect the public and the crimes that are caught on tape are security crimes There is an act called the Money Laundering Control Act MLCA which prohibits the knowing and the willful participation of a nancial transaction when that certain transaction hides the source of the true funds What is Racketeering There is an act called the Racketeer In uenced and Corrupt Organizations Act RICO that initially targets organized crimes and it provides penalties and civil recovery for multiple criminal offenses Is there is someone Who is giving money property or anything that can be served as a bene t to someone for in uence is committing a bribery Another form of bribery 0 Commercial Bribery When an agent for another is paid or given something that is in value to him or her to make a decision that bene ts the party paying the agent What is Extortion and Blackmail and what is the difference Extortion it is an illegal demand by someone Who is a public of cer acting With an apparent authority Blackmailing these are extortions made by a nonpublic of cial Meaning anyone can blackmail Grease Payments these are legal payments to speed up or to ensure the performance of normal government duties Facilitation Payments these are also legal payments to speed up or to ensure the performance of normal government duties What is Counterfeiting What this basically is copying something illegally 0 Making your own existing currency money 0 Something that may look genuine but is not Forgery 0 This consists of the making or the altering of an instrument 0 Examples checks and the signing of another 5 name Uttering a crime of issuing or delivering a forged instrument to another person 0 Selling that certain item to another What is perjury 0 Consists of giving false testimony in a judicial proceeding after swearing to say nothing but the truth Other Crimes Bad Check and Credit Card Crimes Bad Checks this is when someone commits an act to use or pass a check with the knowledge and intent of being insuf cient funds in the bank to pay for the check when presented for payment Credit Card Crimes what this basically is stealing someone else 5 credit card and using it What is Embezzlement 0 This is a statutory offense that consists of the unlawful conversion of property that is entrusted to the wrongdoer o The fraudulent conversion of someone else 5 money or property Larceny the wrongful of taking someone else s personal property 0 Example popular example is shoplifting Robbery this is taking of someone 5 personal property But this time suing force or fear The breaking and entering of a home is called burglary with an intention of committing a felony But the intention and the action of burning someone s dwelling is called arson Crimes can also happen on the computer This is called computer crimes and this is the crime with someone who has the intent and knowledge of doing wrong on the computer 0 Example hacking unauthorized use of a computer computer raiding 0 Delivery can also be in harm of a computer crime by the person responsible for a package to be delivered to a speci c address sends it to somewhere else The fourth and fifth amendment First we must learn what the fourth and fifth amendments are Fourth Amendment the privacy protection in the US Constitution that prohibits the searches and seizures that are unauthorized Fifth Amendment protection against selfincrimination and also guarantees due process Due Process the constitutional right to be heard question witnesses and to present evidence Meaning you have the chance to be heard always Chapter 9 What is a tort 0 Comes from the latin word tortus o This means crooked and twisted o This is a civil wrong in today s de nition A person who experiences a direct harm is a tort There are 3 types of torts o Intentional torts this is a civil wrong from a conduct that is intentional 0 Negligence this is a failure to exercise due care which then could cause harm 0 Strict Liability this is a civil wrong for when there is absolute liability because of the inherent danger that could come use of dynamite What is an assault 0 A gesture 0 An intentional conduct that threatens a person 0 Words care insuf cient to constitute an assault What is a battery 0 This is an intentional and wrongful touching of someone without their approval False Imprisonment when a person undergoes intentional detention without that person s consent Everyone has the right to privacy but it can be violated The invasion of privacy is a tort of an intentional intrusion into the private affairs of someone else 0 Looking through someone else 5 email 0 Looking through their windows Defamation o This is when someone says something about you that is untrue Difference between a slander and a libel 0 Slander a defamation of someone through words or gestures o Libel written or oral defamation illegally 0 Example newspapers or magazines with untrue statements about you Absolute Privilege 0 This is a complete defense against the tort of defamation o This is when someone is speaking on the oor to address this Slander and libel can go further than previously mentioned Slander of title is making false statements to a seller s title Trade libel is written defamation about a product or service 0 False advertisements on a product that can in uence you to buy it product disparagement Contract interference this is when a freedom of someone 5 contract is interfered by a third party This chapter is mostly talking about negligence There are different types of negligence o The duty to exercise reasonable care this is when people needs to be aware of their surroundings for example to avoid any harm 0 Example operating machinery and making sure that no one can get hurt around it o Breach of Duty this is the defendant who has not excersized the duty of reasonable care 0 Causation this is when it connects the duty and the breach of a duty to the plaintiff s injuries Malpractice this is when the services are not properly handled and that negligence happened When someone commits negligence there is always a defense to it Types of defense negligence 0 Contributory Negligence common law from the defendant to the plaintiff This is when the defendant is raising defense to the plaintiff by the plaintiff s negligence 0 Comparative Negligence this is when both the defendant and the plaintiff are negligent to a certain degree 0 Assumption of the risk this is written explanation of agreement where the plaintiff is aware of the risks of certain activities and releases the defendant from the liability for personal injuries as a result 0 Immunity out of everyone the government is immune from tort liability In the beginning we mentioned the different types of torts and strict liability was the last one But what exactly is it Strict Liability this was developed solely for to provide guaranteed protection for those who are injured This is an absolute standard of liability
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