Exam 1 Miscellaneous Flashcards
Requirements to amend the Constitution
2/3 of both houses need to vote for the provision
OR
States can call a convention where they can propose the amendment but 3/4 of the states need to ratify it.
Requirements to regulate protected speech
- implement substantial government interest
- directly advance that interest
- go no further than necessary
Requirements for Standing to Sue
- show harm
- show Causation
- show Remedy
2 ways to have case heard by the US Supreme Court
- Appeals of right
- Writ of Certiorari
What can parties control in ADR?
How to settle
What procedures are used
Whether a neutral 3rd party will be present or make decisions
Whether a decision will be legally binding
Advantages and Disadvantages of Mediation
Advantages: fewer rules, custom process, and parties can control the results
Disadvantages: mediator fees, no sanctions or deadlines.
Considerations in International Dispute Resolution:
Forum-selection and Choice-of-law
Forum-selection: which laws are we going to follow? Which state? Which country?
Choice-of-law: which court will hear the dispute?
5 Stages of Litigation
- The Pleadings
- Discovery
- Pre-trial
- Trial
- Post-trial
Composition of the Pleadings
Must show Jurisdiction
Explain the Facts
The Prayer or Remedy
Answer can be of 4 types:
General Denial
Change of Venue
Counterclaim against the Plaintiff
May allege affirmative defenses (various)
Post trial motions:
Motion for a new trial
Motion for judgment n.o.v. (notwithstanding verdict.)
Appellate court actions
Affirm, Reverse, or reverse and remand.
Requirements for a Tort
- Existence of a legal duty
- Breach of that Duty
- Causal relationship between the defendant’s conduct and the resulting damages to the plaintiff.
2 types of compensatory damages
Special: monetary and quantifiable
General: non-monetary (example: pain and suffering.)
Slander per se
Loathsome communicable disease (example: STDs)
Business improprieties (“they cheat their customers.”)
Being imprisoned for a serious crime
Serious sexual misconduct
Defenses to defamation
Truth
Privileged speech (ex: statements made by an attorney in court.)
Qualified Privilege (ex: employers evaluation of their employees.)
Fraudulent misrepresentation (fraud) has 5 requirements:
- Misrepresentation of a material fact
- Intent to induce another to rely on the misrepresentation
- Justifiable reliance by innocent party
- Damages suffered as a result of reliance
- A causal connection between misrepresentation and the injury suffered.
Defenses for trespass to land
- Trespass is warranted (necessary) to assist another in danger
- The trespasser is a licensee such as a utility provider.
To prove negligence:
- Duty of care
- Breach of that duty
- Breach caused the injury
- Plaintiff suffered a legal injury
Requirements for defense of negligence:
- Plaintiff has adequate notice and understanding of the risks associated with an activity
- Plaintiff knowingly and willingly engages in the act anyways
- this is frequently asserted when a plaintiff is injured during a recreational activity.
Requirements for a Contract
- Agreement: Offer and Acceptance
- Consideration: something of value to both parties
- Contractual Capacity: both parties must have the capacity to do so
- Legal
Types of causation in tort cases
- Causation of fact (“But for…”)
- Proximate cause
Defenses for negligence:
Assumption of risk
Superseding intervening cause
Contributory to comparative negligence
Basic judicial requirements:
Jurisdiction
Venue
Standing to sue
