BADM 201 All, fin 240 kaplowitz worksheet 8.1: trademarks and related property and patents

stare decisis has two aspects:

1. A court should not overturn its own precedents unless there is a compelling reason to do so. 2. Decisions made by a higher court are binding on lower courts.

What is the 4 basic steps in legal reasoning?

1. Issue 2. Rule 3. Application 4. Conclusion

Law can be divided into which 2 categories?

1. Procedural law 2. Substantive law

United States Supreme Court opinions can be found in which 3 reporters?

1. United States Reports 2. Supreme Court Reporter 3. United States Supreme Court Reports, Lawyers Edition

Matthew Simpson and others created and operated a series of corporate entities to defraud telecommunications companies, creditors, credit reporting agencies, and others. Through these entities, Simpson and the others used routing codes and spoofing services to make long-distance calls appear to be local. They stole other firms' network capacity and diverted payments to themselves. They leased goods and services without paying for them. To hide their association with their corporate entities and with each other, they used false identities, addresses, and credit histories, and issued false bills, invoices, financial statements, and credit references. Did these acts constitute mail and wire fraud? The two elements of a criminal act are 1. _________ and 2. _______.

1. actus reus and 2. mens rea.

A court generally will set aside an arbitrator's award for one of the following reasons: 1. __________ 2. __________ 3. __________

1. if the arbitrator's conduct prejudiced the rights of a party 2. if the awards violates established public policy 3. if the arbitrator exceeded his or her powers

What are 3 types of persuasive authority which judges may use in cases of first impression?

1. nonbinding precedents from other jurisdictions 2. public policy issues 3. unpublished opinions

- Case Problem Blueprint 3.1 Horton Automatics and the Industrial Division of the Communications Workers of America—the union that represented Horton's workers—negotiated a collective bargaining agreement. If an employee's discharge for a workplace-rule violation was submitted to arbitration, the agreement limited the arbitrator to determining whether the rule was reasonable and whether the employee had violated it. When Horton discharged its employee, Ruben de la Garza, the union appealed to arbitration. The arbitrator found that de la Garza had violated a reasonable safety rule, but "was not totally convinced" that Horton should have treated the violation more seriously than other rule violations. The arbitrator ordered de la Garza reinstated to his job. Can a court set aside this order from the arbitrator? When does arbitration usually happen?

1. on a court order 2. by agreement of both parties to a dispute

Chow sued for defect in design of this product. What does Chow have to prove to show design defect? 1. __________ 2. __________

1. that the product was not reasonably safe 2. there was a safer design for lye

Evidence of Simpson's intent can be found in 1. _________ and 2. ____________.

1. the payments he made to himself and 2. his false identifications.

The collective bargaining agreement limited the arbitrator to deciding 1. __________ 2. __________

1. whether the rule was violated 2. whether the rule was reasonable

A patent for an invention lasts for _____ years.

20

2. The percentage of cases that are settled through some form of ADR is approximately

90%

In a particular case, Judge A does not agree at all with the other judges' opinions. Which of the following type of opinion will he write?

A dissenting opinion

Defamation (libel or slander)

A false statement of fact, not made under privilege , that is communicated to a third person and that causes damage to a person's reputation. For public figures, the plaintiff must also prove that the statement was made with actual malice

Mediation

A neutral third party meets with the parties and emphasizes points of agreement to bring them toward resolution of their dispute.

Arbitrator

A neutral third party or panel of experts that hears a dispute in arbitration.,

Arbitration Clause

A part of a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.,

Contributory negligence

A theory in tort law under which a complaining party's own negligence contributed to or caused his or her injuries. No matter how insignificant the plaintiff's negligence was relative to the defendant's negligence, the plaintiff is precluded from recovering any damages.

Comparative negligence

A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence.

A federal court can exercise jurisdiction if a case involves:

A treaty, federal law, or the U.S. Constitution

Which of the following does the United States Supreme Court have to issue before it hears a case?

A writ of certiorari.

A federal or state government agency created by the legislature to perform a specific function, such as to make and enforce rules pertaining to the environment.

Administrative Agency

The body of law created by administrative agencies in order to carry out their duties and responsibilities.

Administrative law

The rules, orders, and decisions of federal, state or local government administrative agencies is?

Administrative law

Battery

An unexcused and harmful or offensive physical contact internally performed.

Assault

Any intentional and unexcused threat of immediate harmful or offensive contact.

Exists with courts of appeal and review.

Appellate jurisdiction.

involves a court deciding whether a matter is one that must be resolved through arbitration.

Arbitrability

Punitive Damages

Awarded in tort cases to punish the wrongdoer and to deter others from similar wrongdoing.

c. accessed Ben's private Facebook page by guessing his password.

Ben's employer reviewed his personal communications at work and then fired Ben. Ben has a viable claim for a violation of the Electronic Communications Privacy Act if his employer: a. accessed Ben's voicemail on his company-issued cell phone. b. reviewed Ben's work e-mail on his work computer. c. accessed Ben's private Facebook page by guessing his password. d. reviewed Ben's telephone calls on his work phone.

To violate a law, by an act or an omission, or to break a legal obligation that one owes to another person or to society.

Breaches

The law as stated by judges in their court opinions is?

Case Law

The rules of law announced in court decisions. Interprets statutes, regulations, constitutional provisions, and other case law.

Case Law

Exclusive State Jurisdiction

Cases involving all matters not subject to federal jurisdiction.

Exclusive Federal Jurisdiction

Cases involving federal crimes, bankruptcy, patents, copyrights, trademarks, and suits against the United States.

Concurrent Jurisdiction

Cases involving federal questions and cases.

The law that governs relations between persons. Civil or Criminal law?

Civil

d. Louis, but not Comcast, for defamation.

Comcast, an Internet service provider, provides internet service to Louis, who posts false and harmful statements about Madeline. Madeline will be able to win a lawsuit against: a. neither Louis nor Comcast for defamation. b. both Louis and Comcast for defamation. c. Comcast, but not Louis, for defamation. d. Louis, but not Comcast, for defamation.

The body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.

Common Law

A court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority's opinion.

Concurring opinion

Statutes, which are primary sources of law, come from the U.S. ________________________ and state and local ___________________________.

Congress Legislatures

The law as expressed in the U.S. constitution and state constitutions is?

Constitutional Law

Law that is based on the U.S. Constitution and the constitutions of the various states?

Constitutional law

A court in which the only remedies that could be granted were things of value, such as money damages. In the early English king's courts, courts of law were distinct from courts of equity.

Courts of law

Appellate or Reviewing Courts

Deal with questions of law.

General propositions or principles of law that have to do with fairness (equity).

Equitable Maxims

An administrative agency within the executive branch of government. At the federal level, executive agencies are those within the cabinet departments.

Executive Agencies

11. The United States Supreme Court has held that mandatory arbitration clauses in employment contracts are generally unenforceable.

F

8. The Federal Arbitration Act established a set arbitration procedure.

F

In a strict product liability lawsuit, the plaintiff has to show why or in what manner the product became defective

False

Market-share liability is a theory used to require that an injury was caused by a specific defendant

False

T or F. Case law is based on decisions made by those who run administrative agencies.

False

T or F. Cyberlaw is a new type of law.

False

T or F. In the English system, upon which the American system is based, "remedies at law" consisted of any action of order that would correct the wrong.

False

T or F. The U.S. Congress passes federal statues which do not apply to states, but only to the federal government.

False

Under privity of contract, a contractual relationship between the manufacturer and the injured plaintiff must exist before the plaintiff can sue the manufacturer in court

False

When a manufacturer argues that it engaged in reasonable quality control efforts, that argument will act as a sufficient defense in a strict product liability lawsuit

False

Worksheet 7.1: Internet Law In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, which effectively eliminated unsolicited emails.

False

The U.S. Supreme Court hears all cases sent to it for review.

False.

Venue refers to the primary subject matter of a case at trial.

False.

Administrative rules and regulations can be found first the ______________________ and then more permanently in the _____________________________________________.

Federal Register Code of Federal Regulations

Highest State Courts

Final on all questions of state laws.

b. sends messages involving products of companies previously sued under the CAN-SPAM Act.

GoInternet, Inc., is an Internet-access service provider that is being forced to manage numerous unwanted e-mail messages from a sender of e-mail advertisements. GoInternet can sue the company that is e-mailing spam under the CAN-SPAM Act if the sender does any of the following except: a. engages in "dictionary attacks" to breach password-protected computers. b. sends messages involving products of companies previously sued under the CAN-SPAM Act. c. uses a false return e-mail address. d. conveys misleading or deceptive information when sending e-mail.

5.2: Strict Product Liability The landmark case in strict product liability was

Greenman v. Yuba Power Products, Inc.

Doctrines that have withstood the passage of time help guide us in shaping present laws is what type of jurisprudence?

Historical

Finally, the arbitrator decided that

Horton should not have treated this violation as more serious than others

Negotiation

In regard to dispute settlement, a process in which parties attempt to settle their dispute without going to court, with or without attorneys to represent them.,

Award

In the context of arbitration, the arbitrator's decision.

General Damages

Intended to compensate individuals (but not companies) for the nonmonetary aspects of the harm suffered from a tort, such as pain and suffering.

Compensatory Damages

Intended to compensate or reimburse a plaintiff for actual losses.

Special Damages

Intended to compensate the plaintiff for quantifiable monetary losses, such as medical expenses.

b. be allowed to obtain Mark's social media posts before the trial begins.

Irene sues Mark for defamation. During the lawsuit, Irene wants to obtain Mark's posts on his social media. Irene will: a. be prevented from obtaining Mark's social media posts because of federal privacy law. b. be allowed to obtain Mark's social media posts before the trial begins. c. be allowed to obtain Mark's social media posts only through testimony at trial. d. be prevented from obtaining Mark's social media posts because of state privacy law.

b. Federal Trade Commission.

Jennifer has filed a privacy complaint against Google. The federal agency to conduct an investigation of consumer complaints is the: a. Federal Communications Commission. b. Federal Trade Commission. c. Federal Aviation Administration. d. Securities and Exchange Commission.

b. copyright law.

Jorge downloads a movie onto his laptop without permission from the movie provider. Jorge has violated: a. trademark law. b. copyright law. c. trade distribution law. d. cybersquatting law.

a. U.S. Safe Web Act.

Julian sends false and deceptive e-mails from a computer in France to recipients in the United States. The U.S. Government officials can cooperate and share information with foreign governments under the: a. U.S. Safe Web Act. b. CAN-SPAM Act. c. Stored Communications Act. d. Commercial E-mail Distribution Protection Act.

The science or philosophy of law.

Jurisprudence

d. posting a photo on Twitter or Instagram.

Kevin has a reasonable expectation of privacy in sharing information online in all of the following situations except: a. entering credit-card information to purchase a product. b. sending an e-mail to his physician. c. entering personal banking information on a banking Web site. d. posting a photo on Twitter or Instagram.

A school of legal thought centered on the assumption that there is no law higher than the laws created by a national government. Laws must be obeyed, even if they are unjust, to prevent anarchy.

Legal Positivism

A school of legal thought that holds that the law is only one factor to be considered when deciding cases and that social and economic circumstances should also be taken into account.

Legal Realism

Customary practices and the circumstances surrounding the transaction guide us in the shaping the decision is what type of jurisprudence?

Legal realism

b. online defamation.

Lily began a blog, and she relays rumors and gossip that she hears in her hometown. She should be concerned about: a. copyright infringement. b. online defamation. c. disclosing trade secrets. d. trademark infringement.

The power of judicial review has remained unchallenged since which United States Supreme Court decision?

Marbury v. Madison.

d. Instruct spam recipients on how to "opt out" of their e-mails.

MediaContact, Inc., specializes in sending spam on behalf of its clients. MediaContact may be required to do which of the following in order to comply with state laws? a. Solicit permission from all users to which it wishes to send commercial e-mail. b. Register with the state government as a "spam sender." c. Include the name and location of their corporate address in all e-mail transmissions. d. Instruct spam recipients on how to "opt out" of their e-mails.

c. violated school policy, and his termination will be upheld.

Michael, a teacher, posts derogatory comments about his fellow teachers and students on his Facebook page and is subsequently terminated. His posts likely: a. are protected by the First Amendment, and his termination will be overturned. b. will be construed as harmless fun, and his termination will be overturned. c. violated school policy, and his termination will be upheld. d. are a violation of the social media labor laws, and his termination will be upheld.

A long arm statute allows one state's court to exercise jurisdiction over a defendant from another state who has ___________ with the state in which the court is located.

Minimum contacts.

Which one of the following is NOT a reason why lawsuits against cybersquatters are difficult to pursue?

Most cybersquatters have limited mastery of English

Universal law applies to all human beings is what type of jurisprudence?

Natural law

The oldest school of legal thought, based on the belief that the legal system should reflect universal ("higher") moral and ethical principles that are inherent in human nature.

Nature Law

4. James, a homeowner, files a lawsuit against Helen, his construction contractor. Prior to trial, they meet with their attorneys to try to resolve their dispute before going to trial. This procedure is known as

Negotiation

Bakilana required Kiwanuka to work long hours. Would that fact alone be sufficient to support a claim intentional infliction of emotional distress?

No

Can Bakilana use the First Amendment's guarantee of freedom of speech as a partial or full defense in this case?

No

Is the use of lye to unclog drains common and considered reasonably safe?

No

Is there a safer design for lye itself that would eliminate the backsplash?

No

WHAT IF THE FACTS WERE DIFFERENT? If the collective bargaining agreement did not specifically address the items that the arbitrator could decide, would a court set aside this award?

No

WHAT IF THE FACTS WERE DIFFERENT? What if Bakilana could prove that she never physically attacked Kiwanuka during her isolation and forced labor. Would that cause Kiwanuka's claim to fail?

No

WHAT IF THE FACTS WERE DIFFERENT? What if Chow had followed directions and still was injured. Could he recover under strict product liability?

No

Was this product "defective when sold?"

No

Was this product unreasonably dangerous?

No

What if Simpson and his friends went door to door, collecting prepayments for their services - would that constitute mail fraud?

No

Gunter installs a large glass door in his house and then runs into it, breaking his nose. Gunter sues the manufacturer because he was not warned about the possibility of such an injury. Will Gunter prevail in his lawsuit?

No, because everyone knows that glass doors can be run into, and therefore the manufacturer does not have to provide such a warning

Because you are suspected of sending out bulk unsolicited e-mail advertisements, your Internet service provider is asked by the FTC to supply information on what you do in foreign jurisdictions. Will you succeed in a lawsuit against your Internet service provider for illegally providing such information to the FTC?

No, because the U.S. Safe Web Act provides immunity to the ISP from liability for such action

Trial Courts

Often deal with questions of fact.

A law passed by a local governing unit, such as a city or a county.

Ordinances

Exists with courts that have the authority to hear a case for the first time, called trial courts.

Original jurisdiction.

Negotiation

Parties meet informally with or without their attorneys and attempt to agree on a resolution.

In equity practice, a party that initiates a lawsuit.

Petitioner

Who is the person who files the original petition with the court to start a lawsuit?

Plaintiff

A court opinion that is joined by the largest number of the judges or justices hearing the case, but fewer than half of the total number.

Plurality

There is no law higher than the laws created by the government is what type of jurisprudence?

Positivist

A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.

Precedent

Law that establishes the methods of enforcing the rights established by substantive law.

Procedural Law

Invasion of privacy

Publishing or otherwise making known or using information relating to a person's private life and affairs, with which the public has no legitimate concern, without that person's permission or approval.

Standing to sue requires that a controversy must be:

Real and substantial.

The relief given to an innocent party to enforce a right or compensate for the violation of a right.

Remedies

_____ occurs when courts look at the risk of harm from a product as designed compared to the utility to the user and to the public

Risk-utility analysis // Risk utility analysis

b. typosquatting.

Ron reserves the domain name www.wamart.com before Wal-Mart does, which directs a user to a Web site which he has set up that sells retail goods online. Ron's action is known as: a. cybersquatting. b. typosquatting. c. meta tagging. d. goodwill infringement.

d. cybersquatter.

Russell reserves the domain name "juliaroberts.com" and creates a fan Web site dedicated to Julia Roberts, the actress. Russell eventually sends Ms. Roberts a letter offering to sell her the domain name. Russell is a: a.typosquatter. b. tortfeasor. c. cyberstalker. d.cybersquatter.

How do you know that? People use lye to unclog drains __________

Safely

b. Digital Millennium Copyright Act.

Sean is researching federal law to determine if there are civil or criminal penalties associated with the circumvention of the encryption software on a DVD. He should find the: a. Digital Anti-Piracy Act. b. Digital Millennium Copyright Act. c. Digital Anti-Circumvention Act. d. Digital Copyright Act.

A citation to 42 U.S.C. § 1981 means that the statue is in __________________ 1981 of ____________42 of the United States Code.

Section Title

Which of the following activities is NOT prohibited by the CAN-SPAM Act?

Sending junk mail via the USPS

Mediation

Settling disputes in which a third party assists disputing parties in reconciling their differences.,

13. Online dispute resolution is typically best for resolving

Small-sized business liability claims

A school of legal thought that views the law as a tool for promoting justice in society.

Sociological School

A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.

Stare Decisis

What is a law enacted by federal, state and local legislative bodies?

Statutory Law

The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

Statutory law

Limits the court's jurisdictional authority to particular types of cases and can be either limited or general jurisdiction

Subject matter jurisdiction.

Law that defines, describes, regulates, and creates legal rights and obligations.

Substantive Law

Elaine is involved in a car accident in which the other driver ran a red light. To determine whether she has a case, her attorney would apply which of the following classifications of law?

Substantive law

Drag and drop the appropriate words to fill in this exhibit of state and federal court systems.

Supreme Court of the United States Left: U.S. Courts of Appeals Federal Administrative Agencies U.S. District Courts Right: Highest State Courts State Courts of Appeals State Administrative Agencies Specialized U.S. Courts State Trial Courts of General Jurisdiction Local Trial Courts of Limited Jurisdiction

a. cookies.

Susan is concerned about online retailers collecting data about her Web-browsing activities, also known as: a. cookies. b. domain name. c. meta tags. d. spam.

10. When one party files a lawsuit to compel arbitration, the courts must resolve the issue of arbitrability.

T

d. terminate Barry based on his violation of the company's social media policy.

Takota Retail discovers that Barry, one of its employees, has disparaged the company's selling practices on Facebook. Takota Retail has a policy in place that expects employees to "avoid public comment that adversely affects the company." Takota Retail can: a. not terminate Barry because it would violate state privacy law. b. not terminate Barry because it would violate Barry's First Amendment rights. c. terminate Barry as long as it agrees to provide a severance package in advance of the discharge. d. terminate Barry based on his violation of the company's social media policy.

12. A major not-for-profit provider of ADR services is

The AAA

One primary source of American Law is:

The U.S constitution

Typo-squatting

The act of buying domain names that are similar to well-known domains, except for slight misspellings

Cybersquatting

The act of registering a domain name that is the same as, or confusingly similar to, the trademark of another and then offering to sell that domain name back to the trademark owner

Which of the following does NOT have to be true for the Anticybersquatting Consumer Protection Act to apply.

The domain name is in another language

The doctrine of judicial review allows __________.

The judicial branch to decide whether laws or actions of the other two branches are constitutional.

Tyler believes that some laws passed by his state's legislature are improper, and he refuses to comply with them. He believes that there is a universal law above all others that grants rights to all people. Which school of jurisprudential thought does Tyler subscribe to?

The natural law school

arbitration

The parties present their arguments and evidence before an arbitrator at a hearing, and the arbitrator renders a decision resolving the parties' dispute.

Litigation

The process of resolving a dispute through the court system.,

Alternative Dispute Resolution (ADR)

The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.,

Online Dispute Resolution

The resolution of disputes with the assistance of organizations that offer dispute-resolution services via the Internet.

Arbitration

The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. The decision may or may not be legally binding,

Represents the ordering of most court systems:

Trial courts, intermediate appellate courts, supreme courts.

5.1: Product Liability Under the doctrine of strict liability, liability for injuries is imposed for reasons other than fault

True

Haslo, Inc., manufactures outdoor games for children ages ten to twelve. Any warnings placed on the games should be in bright, bold lettering and presented on simple labels

True

If a defective product injures a bystander, the bystander can sue the manufacturer for strict liability

True

In a strict product liability lawsuit, the product must be in a defective condition when the defendant sells it

True

Privity of contract refers to the relationship that exists between the parties to a contract

True

T or F. Case law is derived from judges' decisions for actual cases.

True

The Anti cybersquatting Consumer Protection Act applies to all domain name registrations and trademarks

True

The doctrine of strict product liability applies to suppliers of component parts

True

Under the Proposed Consumer Privacy Bill of Rights, consumers have a right to reasonable limits on the personal data that companies collect and retain

True

When a user or customer is injured because of fraudulent misrepresentation, the basis of liability may be the tort of fraud

True

When a state exercises jurisdiction over a property within that state, this type of jurisdiction is called "in rem".

True.

Which of the following are part of the federal court system?

U.S. District Courts, U.S. Courts of Appeals, The United States Supreme Courts.

Because the federal CAN-SPAM Act only applied to e-mails originating in the United States, Congress enacted the:

U.S. Safe Web Act

7. Most states have adopted the

Uniform Arbitration Act

Law that facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions.

Uniform Commercial Code

The ____________________________________ is a uniform law adopted by all states that facilitates business transactions.

Uniform Commercial Code

A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If the state adopts the law, it becomes statutory law in that state. Each state has the option of adopting or rejecting all or part of a uniform law.

Uniform Law

When Congress passes a law, in which publication can it be found?

United States Statutes at Large

d. an internal social network.

Unobtainium Venture Capital (UVC), a new venture capital start-up, wants to create a place for employees to communicate and share files, but wants to minimize its potential risk to competitors by protecting its trade secrets that the shared data may contain. UVC should utilize: a. a public social media site. b. standalone PCs. c. e-mail. d. an internal social network.

Because many products cannot be made 100 percent safe for all uses, sellers are only liable for products that are

Unreasonably dangerous

What is the one area listed in which manufacturers do NOT have to use due care

Using adequate test marketing

Chow also claimed the product had inadequate warnings. Were the warnings adequate?

Yes

Collective mark

a mark used by members of an association or labor union to certify the region, materials, mode of manufacture, quality, or accuracy of the goods or services

Certification mark

a mark used by one or more persons to certify that regional origin, quality, or accuracy of a good or service

Service mark

a mark used in the sale or advertising of services to distinguish the services of one person from another

is a decision that furnishes an example or authority for deciding subsequent cases involving similar legal principles and facts.

a precedent

In the field of legal research, a "citation" is:

a reference to a publication in which a legal authority can be found.

If Simpson's actions constitute a crime it would be

a white collar crime.

An intervening event that acts as a superseding (overriding) cause may relieve the defendant of liability for injuries caused by the intervening event. a. True b. False

a. True

The difference between intentional torts and torts involving negligence is that, in torts involving negligence, the tortfeasor does NOT wish to bring about the consequence of the act, nor does she or he believe it they will occur. a. True b. False

a. True

Under the doctrine of res ipsa loquitur, the defendant has the burden to prove that she or he was not negligent. a. True b. False

a. True

Under the doctrine of strict liability, liability for injuries is imposed for reasons other than fault: a. True b. False

a. True

Which of the following is NOT an element of negligence? a. intent b. duty c. breach d. causation e. damages

a. intent

Assumption of risk does NOT require: a. seeking out the riskiest activities b. knowledge of the risk c. voluntary assumption of the risk

a. seeking out the riskiest activities

3. Arbitration differs from other forms of ADR because:

a. the arbitrator hears the dispute and imposes a solution on the parties.

Assume that Congress passes a law establishing a new administrative agency to oversee cyberlaw issues. The agency writes rules to enable it to carry out its duties. The rules written by the agency will be known as a part of:

administrative law

The doctrine of strict product liability does NOT apply to which of the following? a. assemblers b. packagers c. bottlers d. manufacturers e. processors f. advertising agencies g. wholesalers h. retailers i. distributors

advertising agencies

To successfully assert a design defect, a plaintiff has to show that a reasonable ____ design was available and that the defendant's failure to ____ the alternative design rendered the product ____ reasonably ____

alternative adopt not safe

The Federal Trade Commission is an example of:

an independent regulatory agency

The city of Flagstaff passes legislation to make it illegal to carry an open container of alcohol on any city street at any time. This legislation is called:

an ordinance

Monroe is reviewing an appellate case for class and must correctly identify the parties to the case. The party appealing the case is known as the:

appellant

The _________________ is the party who appeals a lower court's decision.

appellant

Pick the correct ordering of the typical major procedural steps in a criminal case.

arrest - > booking - > initial appearance - > preliminary hearing (or grand jury) - > indictment or information - > arraignment - > trial

The order to reinstate de la Garza to his job is called the arbitrator's

award

An attorney's conduct is judged by the reasonable person standard. a. True b. False

b. False

Because an intentional tort requires intent, a harmful motive is required. a. True b. False

b. False

The basic purpose of tort law is to punish criminal wrongdoers. a. True b. False

b. False

The reasonable person standard concerns itself with how a particular person would act and not with how an ordinarily prudent person should act. a. True b. False

b. False

You accidentally bump into someone on the sidewalk and that person falls but is unharmed. Nonetheless, that person usually can successfully sue you for damages. a. True b. False

b. False

Cooktop, Inc., manufactures cooktops on which Juarez burns his fingers. Has Cooktop, Inc., unreasonably violated its standard duty of care? a. Yes, because Cooktop placed no warnings about the possibility of being burned. b. No, because stoves get hot and some people get burned when they are careless. c. No, because Cooktop disclaimed all liability for accidents.

b. No, because stoves get hot and some people get burned when they are careless.

Which of the following is not an element of false misrepresentation? a. An intent to induce another to rely on the misrepresentation b. The misrepresentation of opinions c. Justifiable reliance by the deceived party d. Damage suffered as a result of the reliance

b. The misrepresentation of opinions

Which of the following questions does a court NOT ask to determine whether the requirement of causation is met? a. Is there causation in fact? b. Was there intent? c. Was the act the proximate cause of the injury?

b. Was there intent?

Which of the following are the two broad classifications of torts? Select two. a. criminal wrongs b. unintentional torts c. actionable torts d. intentional torts

b. unintentional torts d. intentional torts

A person who engages in unexcused and harmful or offensive physical contact against someone else has committed:

battery

which tort provides a basis for a criminal prosecution as well as for a tort action?

battery

The Miranda v. Arizona case requires that anyone arrested on suspicion of criminal activity must:

be informed of certain constitutional rights before he or she can be interrogated

In this case, the arbitration happened

because the parties agreed through the collective bargaining agreement

The National Conference of Commissioners on Uniform State Laws (NCCUSL) passes a new uniform act related to texting while driving. This uniform act:

becomes the law in every state that adopts the uniform act through legislative action.

If Simpson is arrested and goes to trial on mail fraud charges, the state will have to prove ___________ that he committed the act with intent in order to get a conviction.

beyond a reasonable doubt

issue: burden of proof criminal law:

beyond a reasonable doubt

Usually, the parties agree that the arbitration will be

binding

United States Supreme Court opinions are _______________________ until they are overruled by the Supreme Court or Congress.

binding authority

Which of the following is NOT an element of the tort of wrongful interference with a contractual relationship? a. A valid, enforceable contract must exist between two parties b. A third party must be aware that the contract exists c. A third party must unintentionally cause one of the parties to break the contract

c. A third party must unintentionally cause one of the parties to break the contract

Which of the following has nothing to do with false imprisonment? a. Intentional confinement or restraint of another person's activities without justification b. An interference with the freedom to move without constraint c. You are made fearful of unwanted and possibly harmful contact with another person

c. You are made fearful of unwanted and possibly harmful contact with another person

Stiles is much stronger than Ben. He threatens to beat Ben, then punches him in the face, and knocks out a tooth. Ben will probably bring a lawsuit against Stiles: a. for assault only because Ben got a tooth knocked out b. for battery only because Ben got his tooth knocked out c. for assault and battery because there was both a threat and a harmful action

c. for assault and battery because there was both a threat and a harmful action

Steps toward tort reform in the federal government and a number of states include all of the following except: a. limiting the amount of both punitive damages and general damages that can be awarded b. capping the amount that attorneys can collect in contingency fees c. increasing the burden of proof in negligence cases d. requiring the losing party to pay both the plaintiff's and the defendant's expenses

c. increasing the burden of proof in negligence cases

The system of prior court opinions is called?

case law

Issue: Wrongful act civil law:

causing harm to a person or to a person's property

The _____ is perhaps the most significant federal law addressing cyber crime.

computer fraud and abuse act

Law based on documents setting fourth the general organization , powers, and limits of the government is called __________________________________.

constitutional law

Two important resources for the court in making this decision are the state and federal___________________ , which outline the powers, and limits to those powers, of the state and federal governments.

constitutions

Retailers collect information about consumers using _____.

cookies

Why? Because the __________ will have a __________ review of the decision of an __________ and there is __________ that any of the three reasons for setting aside the award are present.

court limited arbitrator no evidence

Which of the following is NOT slander per se? a. A statement that another has a loathsome disease (historically, leprosy and sexually transmitted diseases, but now also including allegations of mental illness) b. A statement that another has committed improprieties while engaging in a business, profession, or trade c. A statement that another has committed or has been imprisoned for a serious crime d. A statement that another has engaged in unwelcome construction of a residence or commercial property

d. A statement that another has engaged in unwelcome construction of a residence or commercial property

Which of the following situations is arguably not an appropriate application of strict liability? a. keeping wild animals b. blasting with dynamite c. storing toxic chemicals d. shipping storage containers

d. shipping storage containers

Sarah prevails in her lawsuit against Carl for injuries she sustained in a car accident. As a result, Sarah is entitled to a remedy. In the U.S. legal system, Sarah's remedy will most likely be in the form of:

damages

issue: remedy civil law

damages to compensate for the harm or a decree to achieve an equitable remedy

The arbitrator also decided that

de la Garza did violate the rule

The bases for an action in strict liability that are set forth in the Restatement (Second) of Torts Section 402A can be summarized by the following six requirements. The product must have been in a ______ when the defendant sold it. The defendant must normally be engaged in the _____ (or otherwise distributing) that product. The product must be u_____ to the user or consumer because of its defective condition (in most states). The plaintiff must incur _____ to self or property by use or consumption of the product. The defective condition must be the _____ of the injury or damage. The goods must not have been _____ from the time the product was sold to the time the injury was sustained

defective condition business of selling unreasonably dangerous physical harm proximate cause substantially damaged

Based on his actions and evidence of intent, Simpson _________ commit mail and wire fraud.

did

In this case, the arbitrator __________ decide something beyond the issues subject to arbitration.

did

One of the major problems in pursuing an online defamation claim is that:

discovering the identity of the person who posted the defamation is often extremely difficult

Simpsons actions _________ constitute a "scheme" or plan to use communications to defraud the public.

do

There is no ___ duty to warn about risks that are commonly known. A seller must warn those who purchase its product of the harm that can result from the ____ misuse of the product. Courts apply a ____ test to determine if the warnings adequately alert consumers to the product's risks

duty foreseeable reasonableness

A person who commits a tort is known as a: a. maladjustor b. criminal c. perpetuator d. instigator e. tortfeasor

e. tortfeasor

While living in her home country of Tanzania, Sophia Kiwanuka signed an employment contract with Anne Margareth Bakilana, a Tanzanian living in Washington, D.C. Kiwanuka traveled to the United States to work as a babysitter and maid in Bakilana's house. When Kiwanuka arrived, Bakilana confiscated her passport, held her in isolation, and forced her to work long hours under threat of having her deported. Kiwanuka worked seven days a week without breaks and was subjected to regular verbal and psychological abuse by Bakilana. Kiwanuka filed a complaint against Bakilana for intentional infliction of emotional distress, among other claims. Bakilana argued that Kiwanuka's complaint should be dismissed because the allegations were insufficient to show outrageous intentional conduct that resulted in severe emotional distress. If you were the judge, in whose favor would you rule? Why? Intentional infliction of emotional distress can be defined as __________ and __________ conduct resulting in severe emotional distress to another.

extreme outrageous

A color scheme can never qualify for trademark protection.

false

A cyber crime can best be defined as a new type of crime.

false

Accusations of invasion of privacy have been limited to government agencies and private individuals, and have not extended to organizations. // Accusations of invasion of privacy have been limited to private individuals and not organizations.

false

If a person in custody on suspicion of criminal activity says out loud, "Maybe I should talk to my lawyer," the police will stop questioning or violate the Sixth Amendment right to counsel.

false

Infringement of a trademark requires intent to infringe, as well as federal registration.

false

Internet service providers are generally treated the same as print publishers and other media regarding liability for defamation.

false

It is legal to make counterfeit labels and ship them overseas because those labels are not affixed to goods.

false

Posting negative comments about other individuals on your social media is protected speech.

false

Similar to trademark infringement, a claim of trademark dilution in the online world requires proof that consumers will likely be confused by a connection between the unauthorized use and the mark.

false

Tracking vehicle movements with a GPS does not require public authorities to obtain a search warrant.

false

an individual who has been the subject of a crime can prosecute the alleged criminal

false

because a corporation is a legal entity and not a human being, there can never be corporate criminal liability

false

Under the Trademark Dilution Revision Act, a plaintiff must prove that the plaintiff owns a _____ mark that is distinctive; the defendant has begun using a mark that is _____ the famous mark; the similarity between the defendant's mark and the famous mark gives rise to an _____ between the marks; and this is likely to _____ the distinctiveness of the famous mark or result in harm to its _____.

famous, diluting, association, impair, reputation

The most strongly protected type of mark is labeled as:

fanciful and arbitrary

If Simpson's actions constitute mail fraud, it is a __________ crime.

federal

If convicted of mail fraud, what are Simpson's possible criminal punishments?

fines and imprisonment

What if the United States Supreme Court had not issued the prior opinion and California courts also had not decided that those clauses contravene a strong public policy? This case would be a case of________________________________ in California.

first impression

Loss of______occurs when another party uses a domain name similar to yours.

goodwill

Alchin pays for and downloads a new exercise app on his smartphone. He believes that because he paid for it, he can legally make copies and sell them to his friends at the gym. He is wrong because:

he only obtained a license to use, not ownership of the app

Alchin pays for and downloads a new exercise app on his smartphone. He believes that because he paid for it, he can legally make copies and sell them to his friends at the gym. He is wrong because:

he only obtained a license to use, not ownership of the app.

a person can be found criminally reckless if:

he or she consciously disregards a substantial and unjustifiable risk

__________ cannot be strictly liable for injuries resulting from unsafe products.

homeowners whose guests use products

A mark may be registered as a trademark with the federal government if it meets one of two criteria. Select the two correct criteria.

if it currently is being used in commerce, if it is intended to be in use in commerce within six months

Remedies ______________________ include specific performance.

in equity

When a grand jury decides that someone should be charged for an alleged crime, such a charge is called an _____.

indictment

Hank may be able to sue his neighbor Larson for __________ if Larson sends Hank a text message telling him that his wife was killed in a car accident even though Hank knew that was untrue.

infliction of emotional distress

Many lesser crimes do not require a grand jury, but the individual is nonetheless formally charged via a(n) _____.

information

Acts that are irritating generally are __________ and usually __________ without more evidence to support a claim of intentional infliction of emotional distress.

insufficient not enough

What is Simpson's mens rea- mental state? // Simpson's mens rea mental state was

intent to overcharge customers to make a profit

Theories of product liability may normally be based on all of these theories except

invasion of privacy

a homicide is classified as _____________ when it results from an act of criminal negligence and there is no intent to kill

involuntary manslaughter

Those who enter retail premises are called business __________. Storeowners must warn business invitees of __________ risks. A landowner has a duty to discover and remove any __________ dangers to customers or other invitees. When risks are __________, owners need not warn of them.

invtiees foreseeable hidden obvious

If a plaintiff waited to bring a lawsuit for several years, and in those years witnesses died and evidence was lost or destroyed, one equitable defense that the defendant may have is called:

laches

The most important statutory protection for trademarks is the:

lanham act

Because of that, a court is __________ to set aside the arbitrator's award

likely

When a court's opinion is not unanimous, but most judges in that case agree with it, it is called a:

majority opinion

in latin, a wrongful mental state is known as:

mens rea

When parties arbitrate, the arbitrator is a __________ third party.

neutral

Eighth Amendment

no excessive bail and no cruel and unusual punishment

Fifth Amendment

no person can be forced to be a witness against himself or herself

If a person sues an Internet service provider because one of the ISP's customers posted a defamatory statement about that person, will that person likely prevail in court?

no, because the communications decency act treats internet service providers differently from print publishers

All of the following are an example of a manufacturing defect except

nonconformity with design specifications

Kiwanuka signed her employment contract with Bakilana while living in Tanzania. This fact will __________ Kiwanuka's claim of intentional infliction of emotional distress.

not impact

To be patentable, an invention, discovery, process, or design must be:

novel, useful, and not obvious

A source of law that courts must follow when deciding a case is called a binding authority. A binding authority does NOT include

opinions from trusted newspapers.

Why? Because a claim of intentional infliction of emotional distress can be proven by showing __________ behavior or repeated __________ coupled with __________.

outrageous annoyances threats

By the whole court; a court opinion written by the court as a whole instead of being authored by a judge or justice.

per curiam opinion

Negligence __________ may occur if an individual violates a statute or ordinance and thereby causes the kind of harm that the statute was intended to prevent. __________ statutes exist to protect, as an example, medical personnel who volunteer their services in emergency situations. __________-shop acts impose liability on bartenders who have served too much alcohol to those who are involved in accidents after leaving the bar.

per se Good Samaritan Dram

Administrative agencies are created to:

perform specific government functions delegated to them by the legislature.

Without the prior guidance, the California courts likely would look to ______________________ authorities to help them reason through a decision.

persuasive

Which of the following are possible cyber crimes? Choose four.

phishing, identity theft, cyberterrorism, hacking

If the California court turns to prior court opinions to determine if it should dismiss the suit, it is looking for________________.

precedent

Issue: Burden of Proof civil law:

preponderance of the evidence

AOL, LLC, mistakenly made public the personal information of 650,000 of its members. The members filed a suit in California, alleging violations of federal law and California state law. The member agreement between AOL and its members included a provision declaring Virginia as the location of any court dispute. AOL asked the court to dismiss the suit on the basis of that "forum-selection" clause in its member agreement. Under a previous decision of the United States Supreme Court, a forum-selection clause is unenforceable "if enforcement would contravene a strong public policy of the forum in which suit is brought." California courts previously have declared in other cases that clauses similar to the AOL clause contravene a strong public policy. In deciding whether to dismiss the suit, the court in California first should look to_____________________ sources of law, or sources that establish the law.

primary

The Fourth Amendment provides protection against unreasonable searches and seizures and requires that cause exist before a warrant for a search or an arrest can be issued.

probable

When the outrageous conduct consists of speech about a __________ , the First Amendment's guarantee of freedom of speech __________ emotional distress claims.

public figure limits

issue: remedy criminal law

punishment (fine, imprisonment, or death)

Most appellate court judges write opinions in which they give the reasons for their decisions. These opinions are collected and published in volumes of books known as:

reporters

under the ______________ doctrine, a court may impose criminal liability on a corporate officer who knew about a given criminal violation

responsible corporate officer

Sixth Amendment

right to a speedy public trial by jury

Why or why not? The product was delivered in a __________ condition.

safe

Why? The product was considered __________

safe

If the court cannot find any sources of law that establish or direct their decision to dismiss the suit, the court should then turn to ______________ sources of law for guidance.

secondary

When a judge uses legal encyclopedias, law review articles, and Restatements to guide a decision, that judge is using:

secondary sources of the law

criminal negligence can occur when a defendant is not aware of the risk, but

should have been aware of it

To be actionable, the conduct must be so severe that it exceeds the bounds of decency accepted by __________.

society

Part of common law tradition relies on the doctrine of __________________________.

stare decisis

Richard is a state appeals court judge. In making judicial decisions, Richard issues rulings which are consistent with precedents established in similar cases within his jurisdiction. Richard is following the principle of:

stare decisis

The California court will follow the decision of the United States Supreme Court because of the doctrine of______________________ . The United States Supreme Court decision is ____________________ on the California courts.

stare decisis binding

Another resource for the court are the_____________ passed by the United States ____________ and the state _________________________.

statutes congress legislatures

The Illinois state legislature passes a law raising the speed limit on certain state roads. This law becomes part of a body of law known as:

statutory law

Criminal law is

statutory law.

What happens when evidence obtained in violation of the rights spelled out in the Fourth, Fifth, and Sixth Amendments is presented at trial?

such evidence must be excluded from the trial proceedings

Threatening conduct coupled with repeated annoyances can be __________ to support a claim of intentional infliction of emotional distress.

sufficient

Generally speaking, the Restatements of Law:

summarize the common law rules followed by most states

A case on the subject of free speech on the Internet comes before a Wisconsin state trial court. It is a case of first impression, which means that no case involving the same issue has been decided by the Wisconsin courts. In deciding such a case, it would be considered the least proper for the judge to consider:

survey data from the local community

Mail fraud requires some sort of communication system. Which one(s)did Simpson use?

telephone

All of the cases which have been decided by U.S. judges, as well as by English judges prior to the American Revolution, constitute a body of law known as:

the common law

Which agency investigates consumer complaints of privacy violations?

the federal trade commission

issue: party who brings suit civil law:

the person who suffered harm

The arbitrator decided that

the rule was reasonable

issue: party who brings suit criminal law:

the state

Of the U.S laws, including state laws, the U.S. Constitution is __________________________.

the supreme law of the land

The Latin term stare decisis means:

to stand on decided cases

Patent infringement is a _____. It is committed when one uses, makes, or _____ another's patented design, product, or process without the patent owner's _____. This is true even if the patented product is not yet put into _____.

tort, sells, permission, commerce

The distinctive color, furniture, labels, logos and employee uniforms that might be used by a company are known as its:

trade dress

Cyberlaw consists of:

traditional legal principles that have changed because of technology.

A trade name may be protected under trademark law and may be registered with the federal government so long as it is also used as a trademark or service mark.

true

A trademark is a distinctive mark or motto that a manufacturer stamps, prints, or otherwise affixes to its own goods.

true

Determining who commits cyber crimes is a major challenge to legal authorities worldwide.

true

If an individual is a victim of computer theft under the Computer Fraud and Abuse Act, the individual may be able to bring a civil suit against the violator to obtain damages, an injunction, and other relief.

true

Subsequent to the America Invents Act of 2011, the first person to file a patent application receives patent protection.

true

T or F. State Constitutions are a primary source of law

true

Using another's trademark in a meta tag will normally constitute trademark infringement.

true

Worksheet 7.3: Online Defamation & Privacy Cyber torts include online defamation.

true

a physical attack can be a tort or a crime or both

true

corporations are normally liable for the crimes committed by their agents and employees within the course and scope of their employment

true

generally, for a criminal act to have occurred, a person must have committed the guilty act and had a wrongful mental state

true

many of the more than 4000 federal criminal offenses do not require a specifically wrongful mental state

true

many states have enacted laws that punish behavior as criminal without the need to show criminal intent

true

If the U.S. Supreme Court determines that a state criminal law violates a provision of the Fourth Amendment to the U.S. Constitution, that law will be declared _____________________________.

unconstitutional

Due to the volatile nature of lye, it is __________ that the risk of backsplash can be entirely eliminated.

unlikely

Yun Tung Chow tried to unclog a floor drain in the kitchen of the restaurant where he worked. He used a drain cleaner called Lewis Red Devil Lye that contained crystalline sodium hydroxide. The product label said to wear eye protection, to put one tablespoon of lye directly into the drain, and to keep one's face away from the drain because there could be dangerous backsplash. Without eye protection, Chow mixed three tablespoons of lye in a can and poured that mixture down the drain while bending over it. Liquid splashed back into his face, causing injury. He brought a product liability suit based on inadequate warnings and design defect. The trial court granted summary judgment to the manufacturer, and Chow appealed. An expert for Chow stated that the product was defective because it had a tendency to backsplash. Why does the law impose strict product liability? To protect consumers from __________ products.

unsafe

What requirement of mail fraud would be missing? // The requirement of mail fraud that would be missing would be

use of the communications // use of a method of communication

What is Simpson's actus reus- guilty act? // Simpson's actus reus guilty act was

using codes and spoofing services to make long-distance calls appear local

issue: wrongful act criminal law:

violating a statue that prohibits some type of activity

__________ is not a recognized type of product defect that can harm consumers.

visual flaws

Fourth Amendment

warrant must be issued with probable cause

Why? It __________ Chow's responsibility to read the label and follow directions.

was

Why or why not? The product __________ dangerous beyond the expectation of an ordinary consumer.

was not

In which situations do people likely have a reasonable expectation of privacy? Choose two.

when they enter their personal banking information online, when they disclose online credit information to obtain a loan

Because of the United States Supreme Court opinion and the prior California cases regarding clauses of this type, the California court ____________________ enforce the clause in the contract.

will not

Because of the precedent set, the California court__________________ dismiss the suit and the case will be heard in ___________________________.

will not California

A police officer believes that evidence of a crime exists in a house and asks a judge to issue a general warrant that allows a search of the house for any evidence that might be found. The judge likely:

will not grant the warrant because it is too general

Which of the following are different forms of malware? a. _____ b. _____ c. _____.

worms, viruses, botnets

A court __________ likely consider Bakilana holding Kiwanuka in isolation and confiscating her passport as evidence of emotional distress.

would

Online posts have been used to support allegations of _____ and _____.

wrongful interference, infliction of emotional distress