test 1 Flashcards
4 main sources of contemporary law
common law
the constitution
statutes
administrative
common law
comes from england
stare decisis- let the decision stand
the debate of the constitution
antifederalist- want limited gov, strong state rights
federalists- want strong central fed gov; wrote federalists papers (Alexander Hamilton)
the constitution
establishes 3 branches of gov
establishes checks and balances
establishes fundamental rights (bill of rights are first 10 amendments to the constitution)
article 1
legislative branch
article 2
executive branch
article 3
courts
checks and balances
branches can check the power of the other branches
fundamental rights
found in the bill of rights and subsequent amendments to the constitution
criminal law burden of proof
beyond reasonable doubt
civil law burden of proof
preponderance of the evidence
the American system of gov rejects
the philosophy of utilitarianism
utilitarianism
what is best for the majority is best. the ends justify the means; constitution establishes fundamental rights for all citizens
federal statute that had major impact on employers and employees
title VII
title VII
makes discrimination on the basis of race sex and other classifications in employment illegal
rules for statutory interpretation
plain meaning rule
legislative history
public policy
what gives fed gov the right to pass law regulating state commerce
commerce clause
commerce clause
congress can pass any laws regulating commerce between the states
dormant commerce clause
prevents states from passing laws preventing out of state companies from doing business in the state
what happens when a state law conflicts with a federal law
the constitution supremacy clause says fed law trumps state law
elements of tort of defamation
defamatory statement
falsity
communicated to a third party
injury
standard for press makes it harder to prove defamation (must show actual malice)- NYT vs Sullivan
compensatory damages
designed to compensate individuals who are injured
punitive damages
designed to punish bad actors and to deter wrongful conduct; must be based on fraud, faith, or gross negligence; there can be no punitive damages for mere negligence
business torts elements
contract between plaintiff and a third party
defendant knew the contract
the defendant improperly included the third party to breach the contract
there was an injury to plaintiff
business torts examples
tortious interference with contracts
negligence claims must prove
duty
breach
causation
damages
duty
plaintiff has to prove defendant owed them a duty
breach
prove defendant breached duty of reasonable care with some action (ex. Causing a car accident)
causation
prove the duty that was breached caused damages
fact- what happened ACTUALLY caused damages
Proximate cause- causation was foreseeable outcome of the breach of the duty
damages
Cannot get punitive damages in negligence cases
affirmative defenses to a negligence claim
contributory negligence
comparative negligence
statute of limitations
state and federal statutes provide a deadline for when lawsuits must be filed; time begins when plaintiff knew or should have known about the claim
contributory negligence
defendant is negligent, but plaintiff is partially at fault
comparative negligence
committed by some other person that is also a proximate cause of the Plaintiff’s injuries.
