Legal Env. Business Test One

The three most common formal methods of ADR are:

Mediation, arbitration and expert evaluation --The most common formal ADR methods are arbitration, mediation and expert evaluation.

Depositions and interrogatories occur during the _____ stage of litigation.

discovery --Depositions and interrogatories are two of the methods used to gather information during the discovery stage of litigation.

Felonies generally are punishable by

twelve months or more of incarceration. -- A felony is a serious crime punishable by one year or more of incarceration.

Which of the following statements about alternative dispute resolution (ADR) is true?

A common formal ADR method is mediation. --Arbitration is not the only form of ADR that uses a third party, both mediation and medarb use third parties. Settlement agreements are not a formal version of ADR, they are considered informal. Finally, mediation is a common formal method of ADR.

In which of the following situations would res ipsa loquitur likely apply?

A pair of surgical scissors was left inside Boris after surgery, but he can't prove exactly how they got there --Res ipsa loquitur allows an injured party to create a presumption that the tortfeasor was negligent by pointing to certain facts that infer negligent conduct without showing exactly how the tortfeasor behaved negligently.

A court of limited authority would best be described as:

A state bankruptcy court that can only resolve bankruptcies within the state -- A court of limited authority is one that is confined to hearing a particular type of dispute, such as a bankruptcy proceeding. It can be contrasted with courts of general authority, which can hear general types of cases but are confined to a geographic location.

Which of the following is true of trial courts?

A trial court decision is binding on the parties to the case an no one else. --A trial court decision does not establish precedent and only binds the parties to the case itself.

What are the two primary roles of the judiciary in the U.S. system?

Adjudicate cases and perform judicial review -- The two primary roles of the judiciary are to adjudicate cases and to perform judicial review of actions of the other branches of government.

Cindy verbally told a number of lies about Beyhanna, a diva recording star. These lies included that she was regularly using illegal drugs. One of the people Cindy told the lies to, Ramone, worked for Beyhanna's record label and Ramone went straight to the president of the record label and verbally told him about the drug use story that he had heard. While Cindy's stories were lies, they sounded compelling to Ramone and would have convinced the average reasonable person of their truthfulness. Beyhanna was fired by the record label as a direct result of the lies and lost out on a recording contract worth $5 million. If Beyhanna sues Ramone for defamation, what result?

Beyhanna should not win because Ramone did not act with malice, an essential element of a defamation claim against a public figure. --Public figures must prove malice as an element of their defamation claims.

Which of the following is true of judicial review?

It is established by common law precedent. -- Judicial review is not a constitutional power, it was the holding of the case Marbury v. Madison in 1803.

Turner brought a lawsuit against her employer Discrimco. Turner had signed an employment contract with Discrimco which contained a clause stating that all disputes between the parties were to be heard by an arbitrator in a binding hearing. Turner's lawsuit is based on sexual and racial discrimination and she is pursuing it under the federal Civil Rights Act. Discrimco has made a motion to dismiss the case on grounds that the matter is subject to binding arbitration. Which of the following is correct?

Discrimco is correct, Turner's lawsuit should be dismissed and she must undergo binding arbitration. --The U.S. Supreme Court has held that even when an employee brings suit against an employer for violating federal antidiscrimination laws, that the FAA applies to arbitration clauses contained in contracts.

Stan and Dwight were playing in a golf tournament and came to a hole where there was a hill that required a blind shot to the green. Dwight asked Stan to drive ahead in the golf cart to see if they could hit their shots. Stan drove the cart over the hill, saw the green was clear, and started driving back to the tee box. Dwight never saw Stan heading back in the cart, became impatient and without warning hit his shot. The shot conked Stan on the head, knocking him out and resulting in a long term disability. Stan sued Dwight for negligence. What is the likely result?

Dwight is liable for negligence because Stan did not knowingly assume the risk that Dwight would hit a shot in his direction. --Dwight committed an unintentional tort of negligence. Assumption of risk would not apply in this situation, as no reasonable person would assume that Dwight would suddenly hit a shot down the fairway knowing Stan was in the path.

Graphic Games, a video game developer, had its latest game "Mega Zombie Kill" banned for sale in Iowa to children under the age of 18 pursuant to a new Iowa law restricting the sales of games featuring extreme violence. Graphic Games challenged this action in court on grounds that it was unconstitutional. Which of the following would be the best constitutional theory for Graphic Games to pursue?

First Amendment Free Speech -- The U.S. Supreme Court has held that video games are free speech and that restrictions upon them based on the content should be analyzed under strict scrutiny.

Which of the following situations will create diversity jurisdiction?

Forrest, a resident of Georgia, is suing Bubba, a resident of Alabama, for $150,000 for injuries Forrest alleges Bubba caused him when he ran over Forrest's foot with his truck. --Diversity jurisdiction requires citizens of different states and a controversy of $75,000 or more. It is not meant to create jurisdiction when a state sues another state or when a resident sues their own state.

Gertie was sitting on her porch when she saw William, a person who lived down the street from her whom she occasionally spoke to, walking by, texting on his phone. William turned towards the street, not paying attention to his surroundings. Gertie saw he was about to walk into the path of an oncoming truck but did not warn him and watched as he was hit by the truck and flew through the air. William was badly injured and sued Gertie. What is the likely result?

Gertie wins because there was no special relationship between her and William. --Gertie's failure to act is not a tort because the general duty of care does not include a duty to rescue another unless there is a special relationship between the parties.

Trace was from Nebraska and sued the Iowa State Bureau of Investigation (ISBI) based on alleged violations of Trace's civil rights by ISBI agents. Trace sued under the federal Civil Rights Act. His lawsuit was for $70,000. In which of the following courts should Trace file his lawsuit and why?

Iowa federal court because of federal question jurisdiction. --This case should be filed in federal court because of federal question jurisdiction, which involves all cases where a party is suing under a federal statute.

Which of the following statements is NOT true of the Federal Arbitration Act (FAA)?

It spells out specific procedures and formats for conducting arbitration proceedings. --The FAA is a statute in which Congress endorsed the use of arbitration as the preferred dispute resolution method for matters governed by federal law. It does not spell out specific procedures and formats for conducting arbitration proceedings, but it does provide a means for enforcing arbitrators' decisions through federal courts.

Mandita, who lives in Los Angeles, California, suffered burns from a blow drier she'd purchased from Chang Manufacturing U.S.A.. In which of the following situations would Mandita be least likely to have personal jurisdiction in a California court over Chang, which is headquartered in New York?

Mandita exchanged some emails and phone calls with a representative from Chang who was based in Chang's New York office. --E-mail exchanges and phone calls by themselves, that are not part of an ongoing business relationship, are the least likely of the scenarios to establish personal jurisdiction.

Which of the following will not create minimum contacts in a state sufficient to find personal jurisdiction on an out-of-state defendant?

Modern Pharmaceuticals maintains a website that provides customers information about its products, as well as email addresses and phone numbers for regional sales representatives from whom customers can purchase products. --A passive website does not create sufficient minimum contacts within a state to create personal jurisdiction.

Officer Tom stops Kathy because she looks like a criminal to him, and after a pat down finds marijuana in her pocket. He then uses the drugs to justify obtaining a warrant to search her home for more drugs. The search uncovers 8 kilos of cocaine. What evidence, if any, would be admissible at trial?

Neither the marijuana nor the cocaine would be admissible at trial. --The marijuana would be fruit of the poisonous tree due to the illegal search, and the cocaine would be derivative evidence based on the illegal seizure of the marijuana and therefore inadmissible also, despite the warrant, because the warrant was tainted by the original search.

Congressman Foghorn was addressing fellow members of Congress during a debate and said of his rival Congresswoman Bombast: "Bombast is a liar and spy for the Russians!" Bombast said this because he specifically wanted to damage Bombast's reputation, and even though he did not know it was a lie, he had a reckless disregard for the truth because his source for the rumor, Sam Shady, was notorious for lying. Bombast was harmed and was not re-elected. Is Foghorn guilty of defamation?

No, he has absolute privilege as a government official during debate. --There is a privilege as Foghorn was acting in an official capacity.

The state of South Carolina passed a law charging an extra fee for out-of-state poultry processors and demanding that their poultry be inspected before it could be sold retail in South Carolina. There was not a similar requirement for in-state poultry. This is justified on grounds that it protects the health and welfare of state residents. Is this law likely to be upheld by a federal court if challenged on constitutional grounds by Braxton Poultry, a Georgia poultry processor?

No, the law will likely be struck down on grounds that a state may not discriminate against or place undue burdens on interstate commerce under the Dormant Commerce Clause.Correct -- The law will likely be struck down because the Dormant Commerce Clause prohibits states from discriminating against or placing undue burdens on interstate commerce.

Excel Manufacturing, a corporation, hired a private investigator to conduct surveillance of DeJuan, the Chief Financial Officer, because he was suspected of committing corporate espionage. Without DeJuan's consent, the private investigator approached DeJuan and demanded to be allowed to search him and his cell phone without either a warrant or probable cause. Which of the following does this action violate?

The action violates no constitutional amendment. -- Constitutional protections apply to government but not private acts.

Mike raped Kathy in the parking lot of Tom's Pub. The attorney general/district attorney's office prosecuted Mike on rape charges. Subsequently, Kathy filed a lawsuit against Mike for money damages. Classify each legal action.

The attorney general/district attorney's case was a criminal case; Jane's lawsuit was a civil case. -- The rape was a crime, and the suit seeking damages would have been based on a tort or other civil wrong.

Which of the following scenarios would most likely result in strict liability?

The brakes on Jose's new car where improperly installed at the factory resulting in him hitting a telephone pole and getting whiplash. --Strict liability occurs when a seller engages in business of selling products to consumers and sells one that is defective through either a design, manufacturing or inadequate warning defect.

Which of the following laws involves a quasi-suspect classification under the Fourteenth Amendment?

The city of Discrimville prohibits people who were born to unwed mothers from working in government run daycare facilities. -- Birth status, being born to an unwed mother, is a quasi-suspect classification.

Michelle is driving at night when a policeman pulls her over for a blown taillight. When he approaches the car, he shines his flashlight into the car and sees a bag of white powder on the back seat. The officer orders Michelle out of the car and then reaches in to seize the bag. A quick examination leads him to believe that the bag contains cocaine. He arrests Michelle and takes her to the station. Was the officer's search legal?

The officer conducted a legal search of areas which were openly visible because he may look into the car and may use simple mechanical devices, such as a flashlight, to aid his search without a warrant.Correct --Police may make plain-view searches and may use mechanical devices that are ordinarily available to the public.

Freddie was approached by Byron, a police officer, who asked him if he could search Freddie's backpack. Freddie gave Byron permission to conduct the search. Byron had no warrant and no probable cause to believe that Freddie was involved in criminal activity. Byron found an illegal switchblade in Freddie's backpack and arrested him. Is this a legal search? Why/why not?

This is a legal search because it was consensual, Freddie gave Byron permission. -- This action by Byron is permissible because Freddie consented to the search.

Billy's Barbecue was a small business with 20 employees in Tinyville, a town that seldom had visitors from other states. Billy refused to serve people of Middle Eastern descent. Billy's only contact with other states was purchasing some of his beef from a butcher in a neighboring state. May Congress regulate Billy's activity under the Civil Rights Act? Why/why not?

Yes, because Billy's is engaged in interstate commerce under the Commerce Clause. -- Since Billy's purchased some items from interstate sources, this is sufficient for Congress to exercise its power to regulate a restaurant whose business interests are primarily local.

Leticia was in a conference room being questioned by an attorney. The only other person in the room was a person from the court making a written record. Which of the following is this?

a deposition --A deposition is a series of oral questions of either a party to a lawsuit or a witness asked by a lawyer and recorded by a court reporter.

Strict liability applies to

abnormally dangerous activities.

Murder is the killing of a human being with malice aforethought. Malice aforethought is the premeditation and planning of the crime. Malice aforethought shows that one considered the consequences of the action and knowingly committed the crime. The killing would be the

actus reus -- The killing is the act, which constitutes the crime.

Stelissa was driving her 25-year-old rusty car through a rich neighborhood. Glenn, a police officer, pulled her over because he didn't like the looks of a junky car in a fancy area. Glenn demanded that she step out of the car for a pat-down search. Glenn had no suspicion that Stelissa was committing a crime at the time of the stop. Glenn found a tiny bag of cocaine on Stelissa. Under these circumstances, this is

an illegal search under the Fourth Amendment. -- Police, under the Fourth Amendment, must have just cause or a warrant to conduct searches.

Stephanie is a U.S. bankruptcy court judge in the state of Illinois. Blair is a resident of Illinois and is filing for Chapter 7 bankruptcy in Illinois. Stephane's court serves Blair's county. It would be accurate to say that in Blair's case, Stephanie's court has jurisdiction that is

based on subject matter, personal, and original. -- The jurisdiction is based on subject matter as it is a bankruptcy filed in a bankruptcy court, it is personal, as Blair's county is served by Stephanie's court, so the court has personal jurisdiction over him, and it is original, as Stephanie's court is where the case must be originally filed.

Billy Ray sneaks up behind Jenny Sue and grabs her by the shoulders and shakes her. Jenny Sue is startled and screams but is otherwise uninjured. She feels harassed and embarrassed by the incident. Billy Ray feels bad, apologizes to Jenny Sue, and runs away. Billy Ray has committed

battery. --Even though Billy Ray apologized, this is still battery because he touched her without her consent causing embarrassment and a feeling of harassment.

Jan is on trial for arson. For Jan to be found guilty, her guilt must be proved

beyond a reasonable doubt. -- The standard of proof required in a criminal trial is beyond a reasonable doubt.

Delroy joined with hundreds of other people in a legal action where together they sued Implantco for producing a hernia mesh device that was implanted in them during surgery and later caused complications such as swelling and infections. What is the name for this legal action?

class action --A class action lawsuit is one in which a group of people with the same or similar injuries sue for damages that were caused by the same defendant.

judicial review is the power of the

courts to invalidate a law consistent with the constitution

Tyrell Corporation, headquartered in Indiana, and Blender Corporation, headquartered in Michigan, entered into a contract with a provision stipulating that any legal disputes will be conducted using Michigan law. This agreement is called a

forum selection clause. --Voluntary agreements regarding the law to be used should litigation occur are called forum selection clauses.

Mitigating circumstances

if proved, may be applied to reduce a defendant's punishment. --Mitigating circumstances do not excuse a crime but may be used to reduce the penalty if the defendant is found guilty.

Under the exclusionary rule

illegally obtained evidence may not be introduced at trial. The exclusionary rule pertains to the barring of illegally obtained evidence and its inadmissibility at trial.

In a products liability case, the injured party can pursue a legal remedy against the seller of the product based on all of the following theories except

immunity. -- In a products liability case, the injured party may pursue a legal remedy against the seller under negligence, warranty, or strict liability.

Diversity of citizenship jurisdiction involves a case

in federal court with diverse parties and a controversy over $75,000. --Diversity of citizenship is a federal court jurisdiction and involves parties from different states and a controversy over $75,000.

The three primary categories torts fall into are

intentional torts, negligence and strict liability.

The city of Happy Trails passed an ordinance which prohibited women from working for the police department or sheriff's department in a law enforcement position. If Geneva and a group of women who were denied law enforcement jobs challenge the city ordinance in federal court, when considering the city ordinance, the courts will employ

intermediate scrutiny -- When dealing with a semi-suspect (or quasi-suspect) classification such as gender, the courts will employ intermediate scrutiny.

Act Now!, an organization devoted to voting rights, applied for a permit to protest the closing of polling places in poor neighborhoods. Genevieve, the head of the organization, wanted the protest to be on the lawn of the county courthouse. The county denied the permit on grounds that it would prevent people from accessing the courthouse. If Act Now! challenges this action in court, it will be reviewed by the judge using

intermediate scrutiny Matters involving the time, place and manner of a political demonstration protected by the First Amendment are reviewed using intermediate scrutiny.

The state of Massachusetts passed a law requiring all commercial trucks driving on Massachusetts highways to install special pollution scrubbers on their exhausts. These devices cost $1,500 per truck and any truck entering the state must have the scrubber installed or the driver is subject to a large fine. Massachusetts has justified this regulation on grounds of air quality health for residents and alleviation of global warming. This Massachusetts law

is invalid because, although on its face it's an intrastate law, this statute will have a significant economic effect on interstate commerce, causing an undue burden. - Intrastate laws that place a significant burden on interstate commerce may be regulated by Congress and are subject to preemption.

Bennie was appointed by the state to act as a go-between, helping two parties to a lawsuit to resolve their dispute. Bennie's job did not allow him to make a final decision in the matter. Bennie is known as a/an: ______________________.

mediator --A dispute decided by an independent third party who has no power to render a judgment is known as mediation.

Murder is the killing of a human being with malice aforethought. Malice aforethought is the premeditation and planning of the crime. Malice aforethought shows that one considered the consequence of the action and knowingly committed the crime. The malice aforethought would be the __________________.

mens rea -- Malice aforethought shows the state of mind of the defendant.

According to the text, the primary difference between intentional torts and negligence is the

mind-set of the tortfeasor. --The primary difference between intentional torts and negligence is the mind-set of the tortfeasor.

The state of Montana legislature passed a law requiring that all visitors to factories wear safety glasses. Carl Cutcorner, a supervisor at Shirk Machines, told a visiting group of teachers and students from a local high school that there were not enough safety glasses for all of them, so several went without while on the facility. Penny, a teacher, suffered an eye injury when a metal shaving flew off a machine and hit her in her unprotected eye. If Penny files suit against Shirk Machines and Cutcorner and the court rules that Shirk and Cutcorner breached their duty. The negligence analysis without requiring Penny to delve into the reasonable person analysis or prove negligence, is an application of

negligence per se. -- Violations of safety statutes are sometimes referred to as negligence per se. If a safety statute is violated, a court may find a breach of duty occurred without delving into a reasonably prudent person analysis of negligence.

Jill was very angry at Axel. She summoned him to her office and told him that he was a terrible employee and had been stealing money from the company. There was no one else in the office at the time, but Axel was very offended as Jill was intentionally lying about him. Jill has committed

no defamation tort. --Defamation must be published or disseminated to another. In this case there was no publication to anyone else.

Chan wants to file a lawsuit. What will be the first stage of litigation for him?

pleadings --The pleading phase is the first stage of a litigation, followed by discovery, then the pretrial conference and trial.

Katelyn was suspended from State University after a professor suspected her of cheating on an economics exam. The determination of whether the state government acted properly and gave her an opportunity to present her evidence at a fair and neutral hearing is an analysis of

procedural due process. -- The type of hearing the government must give and notice requirements before taking away rights is an analysis of procedural due process.

The federal government imposed a tax on all oil companies to fund a federal agency devoted to researching alternatives to fossil fuels. If Big Oil Incorporated challenges this tax in federal court, what level of scrutiny will the court apply?

rational basis scrutiny

Julio is suing Sanchez for breach of contract. He wants to get some documents from Sanchez which he believes will help him prepare his case. What is the term for this procedure?

request for production --A request for production is a discovery request that enables a party to get documents, memorandums, notes, calendars and other items from the opposing side.

Attempts by the government to regulate political speech by corporations are subject to

strict scrutiny. -- Government restrictions on the free political speech of corporations are subject to strict scrutiny.

Under the doctrine of res ipsa loquitur, the injured party can prove a negligence claim by

using the facts of the case to create a presumption of negligence. --The doctrine of res ipsa loquitur (a Latin phrase meaning "the thing or matter speaks for itself") is deep-seated in American tort law. This doctrine allows an injured party to create a presumption that the tortfeasor was negligent by pointing to certain facts that infer negligent conduct. Through res ipsa loquitur, the injured party can make a successful negligence claim without showing exactly how the tortfeasor behaved.

Theo wanted to buy a piece of property to build a painting supply factory. He asked Vincent, the owner of the property, if it was zoned for such manufacturing. Vincent told him "Yes, absolutely." This was a lie, it was only zoned for residential use. Theo bought the land at a premium price of $20,000 an acre in reasonable reliance upon Vincent's promise and then was shocked when he was told by the zoning board that he could not build his factory. Because of this, the land was worth a fraction of what Theo paid. Under which of the following theories should Theo sue Vincent?

Fraudulent misrepresentation --Fraudulent misrepresentation involves the intentional misrepresentation of a material fact, the reasonable reliance upon this misrepresentation and damages.