Exam 1 Flashcards
What are the 7 areas of law?
Constitutional law, tort law, contract law, agency, employment law, intellectual property law, criminal law
Sources of law (in order)?
Constitution -> Statutes -> Regulations -> Case Law
Who has the power to assign penalties and is within an administrative agency?
Administrative Law Judge
What is the rule that the court must act consistently with its own prior decisions AND decisions of courts superior to its own?
Stare decisis
What is the Philosophy of Law?
Jurisprudence
What is ADR?
Alternative dispute resolution
In what ADR do 75% of cases settle?
Negotiation
What is the most formal form of ADR?
Arbitration
What are some benefits of ADR?
Less Publicity
Lower risk of losing later
What does a court need for jurisdiction?
Both personal and subject matter jurisdiction*
*only of the defendant
Federal courts automatically have jurisdiction if what?
- Diversity exits (difference of state jurisdiction) and the amount in question must be over $75k
- The case involves a federal question (such as a federal stature or a Constitutional matter)
What does the long arm statute do?
It gives states personal jurisdiction over non residents
Name areas of exclusive federal court jurisdiction
Federal crimes, antitrust, bankruptcy, patents, trademarks, copyright, admiralty, suits against the US
Name the areas of exclusive state court jurisdiction
Probate, adoption, divorce
Which case had the following facts:
- Plavix was sold in CA
- Plavix was manufactured, etc in NY and NJ
- Plavix caused health issues in CA
- Decision: CA courts lacked jurisdiction over nonresidents claims against company
- Effect: Limits where mass tort cases may be filed
Bristol Myers Squibb v Superior Ct
What are the possible dispositive motions?
- Motion to dismiss
- Motion for judgement on the pleadings
- Motion for summary judgement
- Motion for directed verdict
- Motion for judgment notwithstanding the verdict (jnov)
What is the idea that both sides get to see all the evidence before the trial called?
Discovery
Which case had the following facts:
- for $11B for fraudulent marketing
- the company’s CEO called the products “toxic”, etc. over email
- company stock falls 20% in one day
AIG v Bank of America
What is the AI tool to find relative information in electronically stored information?
predictive coding
When does the Supreme Court take cases?
- if there’s a difference in decision between Circuits
- if its a new area
- if they feel they should revisit the law
What is the role of appellate courts?
To make sure no errors of law were committed, no reviews of the facts
What are some benefits to the jury system?
- limits the power of judges
- implements local ideas of justice
- provides a variety of viewpoints
What are some shortcomings of a jury system?
- they are not trained in the law
- complex cases may be difficult
- bias and emotion
- underrepresentation
- expensive
What is the Supreme Law of the Land?
The Constitution
What is the section of the constitution that regulates interstate business?
The Commerce Clause
In what situation can a state impinge upon interstate commerce?
health and safety of their citizens
cannot do it to protect in state business
What is a written opinion on a case from someone not involved in the case or “friend of the court”?
Amicus briefs
What is the right to notice and the opportunity to be heard?
Procedural due process
What is the right that government may not take action that exceeds/abuses its power and that it much provide an appropriate reason for depriving an individual of life, liberty, or property
Substantive due process
What are laws limiting fundamental rights or affecting suspect class?
Strict Scrutiny Standard
What standard are gender based laws?
Intermediate standard*
- and requires substantial state interest
Most laws are held to what standard?
Rational Basis standard
What is a suspect case for violating a fundamental right?
discrimination on race, sex, sexual orientation, ethnic group, etc.
Which case had these facts?:
- the city banned Catholic agency from foster care bc it excludes same sex couples
- Religion won bc 1st Amendment
Fulton v. Philadelphia
What case had these facts:
- Colorado applied nondiscrimination laws to a website designer who refused to do same sex wedding
- ruled with website
303 Creative v. Elenis?
What happened Matal v. Tam?
- the band The Slants were denied a trademark
- ruled that they should be allowed the trademark, else it would be violating the 1st
What case had these facts?
- NC law prohibited registered sex offenders from accessing social networking sites where children can join
- ruled that this violated the 1st
Packingham v. N. Carolina
What speech can be limited?
- Obscenity
- Defamation
- “Fighting Words”
- ex: “Fire” in a crowded room
What is the concept that the government can confiscate your property for public benefit called?
Eminent Domain
What Amendment is eminent domain under?
5th
What did the ruling of the Kelo case mean?
Economic development is a valid public use because it creates jobs and generates tax revenue
Which case had these facts?:
- Fed program required raisin producers to turn over some crop to increate the price
- ruled that this required compensation
Horne v. Dept. of Agriculture
What case had these facts?:
- CA had a law requiring farmers to allow union organizers onto their property
- ruled that this required compensation
- the right to exclude from property is part of a right to property
Cedar Point Nursery v. Hassid
What is a civil wrong, other than a breach of contract?
A tort
The risk of large award incentivizes companies to make products, premises, and practices safe is an argument against what?
Tort reform
Who brings forward the case in fraud as a tort?
The victims
List the 7 Intentional Torts
- Assault
- Battery
- False Imprisonment
- Defamation
- Infliction of Emotion Distress
- Invasion of Privacy
- Fraudulent Misrepresentation
Give an example of battery with no assault
A sneak attack
Give an example of assault with no battery
Threats not carried out
Name the 4 Intentional torts against property
Trespass to Land
Trespass to Personal property
Conversion
Nuisance
What are the Business Torts?
- Tortious Interference with Contactual Relationship
- Tortious Interference with Business Relationship
- Defamation
What are the 2 Unintentional Torts?
- Negligence
- Strict Liability
What is a Dram Shop Act?
Tort liability on who serves an intoxicated person
What 4 things does the plaintiff have to prove for defamation?
- False Statement of Fact
- Published
- Causation
- Damages
Are damages assumed in slander or libel?
libel
What is absolute privilege?
- No defamation ever
- applies to judges and lawyers in court or legislators on the floor
What is qualified privilege?
- cannot be false or made maliciously
- used in situations when people have a reasonable need for the information, like in hiring a new employee
What is appropriation privacy?
Exclusive use of out name or likeness for commercial use
What are some cases of appropriation privacy?
Kardashian v. Old Navy
Jordan v. Jewel
Heigl v. Duane Reade
*all ended in confidential settlements
What is a problem with cases settling?
Leaves a lack of precedent
What are aspects required to win a tort interference case with a business relationship?
- waylaying customers
What is required for a case to be one of negligence?
Serious danger or foreseeable misuse
What does negligence cases have to prove all of? (4)
- Duty
- Breach of duty (reasonably)
- Causation
- Damages
What are the two forms of negligence Causations?
- Causation-in-fact (“but for”)
- proximate cause (foreseeability of harm)
Name a case that is a good example of proximate cause?
Palsgraf v Long Island Railroad
Assumption of risk is a defense to what?
Negligence
In comparative negligence, the plaintiff recovers what?
Partial
In contributory negligence, the plaintiff recovers what?
Nothing
What are the three business negligence claims?
- Premises liability
- product liability
- Malpractice
Ward v. K-Mart Corp was a case of what tort?
Negligence
What are the defenses to negligence?
- Elements not met
- Assumption of Risk
- Comparative Negligence
What are the elements of strict liability?
- Product defective when it was sold
- Defendant is normally in the business of selling
- the product is unreasonably dangerous
- Harm
- Causation
- The good was not substantially changed from when it bought
What are the defenses to strict liability?
Elements not met
If you were suing a company for causing obesity, which tort would you try for?
Strict Liability
Could a second hand buyer have strict liability?
No, since they are not usually in the business of selling, but could be accused for fraud
What makes a product defective and unreasonably dangerous?
- Manufacturing defect (not part of the design)
- Design defect (is there a feasible way to make it safer or is its utility not necessary to be on the market?)
- Lack of reasonable warnings
Degree to which liability must be proven in a criminal case?
Beyond a reasonable doubt
What are the elements of crime?
- prohibited act (included attempts)
- Guilty intent (unless strict liability)
What actus reus?
Prohibited act
What is mens rea?
Guilty intent
What case decided you need warrants to search phones?
Riley v. California
What case decided a warrant was necessary to obtain mobile phone tower records?
Carpenter v. US?
What are the elements of forgery?
- Making or altering a writing to change someone’s legal liability
- Doing so intentionally to defraud that person
Racketing (RICO) Offenses are tools against what?
White collar crimes
What defense is used to say the defendant committed the prohibited act, but did not have a guilty intent?
Insanity
