Test 1 Flashcards
Podias V Mairs Case
Drunk driver hits motor cycle. Newell & Swanson are in the car but not driving & refuse to call for help. FOund REsponsible. Establishes forseeability of harm, ease of prevention, severity of harm, and relationship to victim as ground for liability. Public opinion also factors in
What are the 5 sources of law
1) Constuitution(trumps all)
2) Statues (made by congress, 51% in both houses)
3) Agency Regs (made by agencies)
4) Common Law (Made by courts & precedents)
5) Court Orders (affect specific ppl, made by courts)
Name the Liberal Supreme Court Justices
Ginsburg, Bryer, Sotomeyer, Kagum
Name the moderate conservatives on the Supreme Court
Kennedy, Roberts (CJ)
Name the conservative justices on the Supreme Court
Alito, Thomas, Gorsuch
Soldano V O’Daniels
Barshoot out and denied phone call. Bar #2 was held responsible because the harm was so easily preventable and so great. Further established the lines for liability as severity of harm, foreseeability of harm, ease of prevention, and relationship to victim
What’s the current flow of bystander responsibility in the courts
Bystander responsibility is expanding
Key Differences in Civil and Criminal Suits
Criminal has a more public impact. Only the government can bring a criminal case.
What is a Specific Performance Order & what kind of case do you get one in
An order to do something. (civil cases only)
What is an injunction
An order to stop doing something
What is the difference in $ penalities in civil and criminal cases
Cash Damages go to the person who has been wronged.
Fines go to the governement
What is the burden of proof in a civil and criminal case
criminal burden of proof is “beyond reasonable doubt”
civil burden is “more likely than not”
Way easier to win a civil case
Define “In Personam”
a case where the defendant has to do something. Requires Personal Jurisdiction
Which kind of cases require personal jurisdiction
Civil Cases
What are the 4 requirements of procedural due process
1) adequate notice 2) a hearing 3) an impartial decision maker 4) some substantial contact btwn defendant and the forum state
what is an Appearance
any formal action to defend yourself. This gives away PJ
What is a Special Appearance
A special motion to challenge PJ without giving it away
What are the ways a Long Arm Satute can apply and give you PJ for an out of state D
1) if the D does business in the state with you (SPJ) or in general in the state for a sustained length of time (GPJ)
2) The D committed a tort within the state
3) Serving a summons within the forum state
4) you cause “Foreseeable Harm”
5) you make an appearance
The Internet and PJ
A passive site visit does not give PJ. A transaction over the website does give SPJ in the buyer’s home state. A lot of business coming from one state via the internet can give GPJ.
What is the 100 Mi Bulge provision
Federal courts apply the long arm statues of the states in which they sit. In addition, the 100Mi bulge provision allows them to claim J within 100 mi of the court even if it crosses state lines.
What is Rule 4K2
if the case is about a federal law and the D is foreign but has substantial contact with the US as a whole, US can claim GPJ
2 Key Pleadings to know
1) plantiff’s complain
2) defendants answer. Be sure to file one to avoid a default judgement
What is a default Judgement
The plantiff’s complaint is taken as fully true and a judgement is made. avoid at all costs
What is the easiest way to get PJ
prove the D lives there
What does the Due Process clause guarantee that limits long arm statutes
“minimum fairness” satisfied via “minimum contact” which is defined as reasonable interactions with the state
2 Key takeaways about Jurisdiction and Pleadings
1) dont let a plantiff’s complain go unaddresses 2) get a laywer to write your special appearance if the case is out of state
Knowles V Modglin
Undertaker screws grieving family. The undertaker does have PJ because the undertaker caused foreseeable harm after taking the family’s $
Difference in a Directed Verdict and a Default Judgement
Directed verdict is issued after the plantiffs case that dismisses the case. A Default judgement is the forefeit judgement that your get if you ignore the plantiff’s complaint
What are the 2 ways a lawyer can send home a potential juror
1) Challenge for Cause- an unlimited number of throw outs based on the fact that the person is bias. The judge has to approve each one 2) Peremptory Challenges- A limited number of throwouts the lawyer can do for any reason
What % of lawsuits are settled before the trial
95% but this is after a lot of expensive pre-trial mess has gone down
Arbitration
cheaper, private, binding, can be agreed to before the incident, can be court ordered but you can still appeal if you want
Oxford Healthcare V Sutter
Says the Arbitration judge only has to review the agreement, he doesnt have to do a good job.
What is the timeline of a trial
1) opening Statements 2) plantiffs case 3) Potential for motion for directed verdict 4) Defense Case 5) Closing Statements 6) Deliberations 7) Jury’s Veridict 8) potential for JNOV 9) Judge’s Judgement
What is special about opening and closing statementes
No evidence is presented. Can attack opponent or not. Mostly narrative & pointing out weaknesses
What is a JNOV
asking the judge to ignore the jury and rule correctly
what is a Directed verdict
A halftime request after the plantiff’s argument that asks for the case to be dismissed. The Defense has nothing to lose from one of these requests
Difference in liberal and conservative SC judges
liberal believes that every case is unique and can apply the same law differently. Conservative applies the law literally and tries to make judgements predictable, strictly apply the 10th amendment
What is the takings clause
part of the 5th amendment that protects private property from the governemtn without just compensation
what is eminent domain
The governement does have the right to take your stuff if ti provides just compensation
What qualifies as a taking?
if one person has an unusual financial burden not placed on the general public & out of proportion to public benefit. Can also be a regulatory taking
Horne V Dpt of Agriculture Takeaways
The 5th Amendment Takings clause applies to personal and real property. Owning must consist of the right to possess, use and dispose of”. Taking part is till a taking. The governemtn cant mandate a cut as a condition for doing an activity
3 Plans to Changing a SC Ruling
1) Wait for the Court to shift 2) Amend the Constitution on (2/3H&S, 3/4 States) 3) FDR Court Packing Plan
What amendment does the equal protection clause come from
14th
What 3 levels are there to the equal protection clause?
1) There must be a “rational” reason for any kind of unequal protection/discrimination 2) There must be an “important” reason for age and gender discrimination 3) There must be a “compelling” reason for race, religion, or national origin discrimination.
Regents Vs. Bakke
Bakke applied and rejected at UC Davis Med School. The ruling banned the use of quotas,but affirmed the use of race as one of many criteria. Bakke won the case. The School argued that the Affirmative action system was good because it was overcoming the effects of prolonged discrimination.
How well has Free Speech been upheld by the SC
Very Well. Porn, offensive art, and corporate speech all protected.
Hugo Black
FDR’s only conservative appointment to the SC. He upheld free speech like none other. Very literal interpretation of the constitution.
What are the 2 kinds of Due Process Arguments and which is most important to business
1) Procedural Due Process- If the government wants to take your life, liberty, or property, they must afford you due process. Govt more bound for more aggressive actions.
2) Substantive Due Process- Attack the substance of the government action b/c it is so outrageous it cant possibly be fair. Bus relevant. Can cap settlements at a reasonable level.
What is due process all about
Fairness
Sorrell V IMS Health Inc.
The SC upheld an appellete ruling that selling information about Dr. perscribing habits is legal. The govt can’t abridge free speech on a content or speaker specific level. Any trade of information is classified as speech. Banning content of speech is just as bad as banning speech. The burden to liberty must be matched to the potential benefits to the Govt.
What is an easement
giving the public the right to do something on your land
Which courts are good for the most issues? State or Fed
State
What are federal courts best for?
National Law Cases (Constitution issues) & Diversity of citizenship cases where the P&D are from different states and the $ at stake is >$75K
BMW V Gore
Gore buys a flooded out BMW without knowing it and gets 4K in regular damages and then gets $4M in punishment Awards. BMW appleals on Substantive Due process and wins. Case later settled out of court
What does Article 1 Section 1 of the constitution say and what is it used to argue
it says that all legislative power is vested in the Congress. Used by conservative judges to argue against the power of agencies to issue regulation with the power of law.
What does Article 1 Section 8 say and what is it used to argue
it is a list of things that congress is called to do. it gives power to regulate interstate commerce and anything necessary and proper to do that. This is interpreted as permission to delegate law making power to agencies.
What is key about Article 1 Section 8?
If the SC drifts conservative, Article 1 Section 1 Argument could win out over the Article 1 Section 8 argument and agencies law making power could be reigned in.
