BLAW 243 - Exam 1
Trespass to land
occurs anytime a person, without permission, intentionally: 1. Person enters onto, above, or below surface of land owner by another 2. Person causes anything to enter onto land owned by another 3. Remains on land owned by another or permits anything to remain on it +Actual harm to land isn't essential because tort is designed to protect right of owner to exclusive possessions
Privilege (absolute and qualified)
qualified - if a statement is made in good faith by a person qualified to be speaking of the individual absolute - occurs in government proceedings
Remedies for "action in equity"
remedies where monetary or property compensation is inadequate +based on justice and fairness
threatening speech
speaker poses a true threat
Prior to commerce clause
states tended to restrict commerce beyond their borders which made trade more costly and inefficient
Defenses against trespass to land
- Trespass was warranted by a license. - Trespasser can enter to assist someone in danger.
On what basis might the federal district court in illinois exercise jurisdiction in Garner vs. Foreman and Manager?
-Garner is from Illinois and Foreman's manager is from texas so theres is a diversity of citizenship -The controverity amount is more than $75,000
Gibbons v. Odgen (1824)
-Gibbons was awarded permission to operate a boat in interstate waters (between NJ and NY) by congress, but did not have NY permission -Ogden was granted permission to operate a boat in interstate waters by NY -First, court ruled that Gibbons did not have NY permission and could not operate -Gibbons appealed and the Supreme Court ruled in favor of him, stating that all commerce is regulated by the federal government (if it has substantial impact on interstate commerce)
Torts that guard privacy rights
-Tort of Invasion of Privacy -Tort of Appropriation/Right of Publicity
Functions of Administrative Law
1) Rulemaking 2) Enforcement and Investigation 3) Adjudication
Types of action in equity
1) Specific performance - court order commanding a party to DO what they promised 2) Injunction - court order commanding a party to do or refrain from a certain act 3) Rescission - cancellation of a contract
Four primary sources of law
1. Constitutional law 2. Statutory law 3. Administrative law 4. Case law and common law doctrines
Defenses to Right of Privacy Torts
1. Newsworthiness → matters of legitimate public concern are newsworthy so not protected 2. Privileged communications → are exempt from right to privacy torts 3. Consent → or individuals self publication of comment ends right to privacy +TRUTH is NOT a defense -Exception: truth is a defense for 1 tort "False Light" - brings publicity to someone only if accusation is the truth
Three-tier model
1. US District Courts → various courts of limited jurisdiction (trial court) 2. US Courts of Appeals → (intermediate appellate court) 3. United States Supreme Court → final court of appeal (highest appellate court)
Wrongful interference with a contractual relationship
1. Valid enforceable CONTRACT must exist between two parties 2. Third party must KNOW that this contract exists 3. The third party must INTENTIONALLY induce a party to breach the contract
Attractive Nuisance
A dangerous place, condition, or object that is particularly attractive to children +Ex) pools, trampolines
e-evidence
A type of evidence that consists of all computer-generated or electronically recorded information.
libel
A written defamation of a person's character, reputation, business, or property rights.
State courts have subject matter jurisdiction in
ANY case over which no other court has "exclusive" jurisdiction
Cyber Law
An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.
appellate jurisdiction
Authority of court to review a decision of a lower court
predatory behavior
Business behavior that is undertaken with the intention of unlawfully driving competitors out of the market.
Case Example 2.5: Public Nudity - Content Neutral Law
Courts often protect nude dancing as a form of symbolic expression but courts allow content neutral laws that ban all public nudity. Rita was charged with dancing nude at an annual anti-christmas protest in Harvard Square. Rita argued that the statute was overly broad and unconstitutional. State court found that it was constitutional because it panned public display of open and gross lewdness in situations which there was an unsuspecting or unwilling audience
equitable maxims
General propositions or principles of law that have to do with fairness (equity).
political speech
Highest degree of protection; government may not regulate political speech (because the US was formed because we couldn't speak up to the King of England)
In Class Example: Kim Kardashian vs. Misguided - Right to Publicity
Kim K won $2.6 million when Missguided profited off of her brand and likeness. The suit included images from Missguided's website and Instagram that depicted Kardashian West and her outfits. Pictures of model/outfits looked like Kim K. Used picture of Kim K wearing a dress and put a link to shop for a dress that looked similar but wasn't the same
statement of fact requirement
Making a negative statement about another person is not defamation unless the statement is false and represents something as a fact rather than a personal opinion
Negligence vs. Intentional Tort
Negligence: 1. Defendant did NOT act with "Intent": 2. The actor's conduct created merely a foreseeable risk that negative consequences will occur 3. Often: intentional tort minus intent Intentional: *Defendant acted with INTENT* 1.Desired harm to come to the plaintiff OR 2.desired to commit the act that led to the harm OR 3. Knew with substantial certainty that the result would occur
To appeal to the supreme court:
Party must request a writ of certiorari
electronic filing
Some state courts allow parties to file litigation-related documents with the courts via the internet
Case Example 1.5: Equal Employment - Interpretive Rules
The Equal Employment Opportunity Commission periodically issues interpretive rules indicating how it plans to interpret the provisions of certain statutes such as American Disabilities Act. These informal rules provide enforcement guidelines for agency officials
Case Example 1.3: FTC - Federal Agency
The Federal Trade Commission was created by the Federal Trade Commission Act. This act prohibits unfair trade practices and describes procedures the agency must follow to charge a person or organization with violations. Can investigate violations, obtain reports of business practices, publish findings.
Statute of Limitations
The time within which a case must be commenced.
The Uniform Commercial Code
UCC facilitates trading among states by providing uniform in the US with flexible rules governing commercial transactions +One of the most important statutes in business law (adopted by all 50 states)
Public Disclosure of Private Facts
When person publicly disclosed private facts about an individual that an ordinary person would find objectionable or embarrassing +email/texting nude pics, disclosing colleagues SSN
Jurisdiction on subject matter
Whether the court has authority over the thing or right claimed by one party against another.
A boat is dry docked in Maryland. A resident of Florida owns the boat, but a resident of New Jersey disputes this ownership. If the New Jersey resident sues the Florida resident, could the state of Maryland have jurisdiction in this case?
Yes - the boat is a piece of property located in maryland. Could do in Maryland or Florida
While Felix is drunk, Matt threatens to push him down a flight of stairs. At the time the threat was made, Felix's friends heard him cry out in frightened protest, but the next day Felix cannot remember the incident. Has Matt committed an assault?
Yes- Matt made Felix fear him. +Assault→word or action INTEND to make another fearful or physical harm +just because he doesn't remember doesn't mean it didn't happen
docket
a court's list of cases to be heard
Mediation
a method of settling disputes outside the court by using services of a neutral third party who acts as a communicating agent between parties and assist them in negotiating a settlement
Pretrial Motions
a motion a party can make to try to dispose of all or part of a lawsuit prior to trial
brief
a written summary or statement prepared by one side in a lawsuit to explain its case to the judge.
Post Trial Motion
asks the trial court to alter or disregard the jury's verdict or to order a new trial
Personal Jurisdiction (In Personam)
based on a defendant's (person's) residence, location, or activities in the state +long arm statutes
Waiver of Formal Service of Process
defendant's right to waive the right to be served personally (already know a lawsuit is being filed against them) +Under the FRCP, defendants who agree to waive formal service of process receive additional time to respond to the complaint (60 days, instead of 20).
Law
enforceable rules governing relationships among individuals and between individuals and their society
Societies have different kinds of laws but all have in common:
establish rights, duties, and privileges that are consistent with values and beliefs of a society or its ruling group
role of a judiciary
interpret and apply the law
Defense to trespass to personal property
trespass was warranted or justified
Legislative Branch
makes the laws (executive branch can veto)
slander
spoken defamation
deposition
sworn statement under oath +Answers need to be given verbally not written (with no help of attorney)
Damages for Negligence
usually compensatory (only punitive in cases of 'gross neglect')
Stare Decisis
"Let the decision stand"; decisions are based on precedents from previous cases (in similar cases, the same decision should be made) +efficiency in courts - use previous cases as a guide +aids legal stability - higher courts have law binding authority on lower courts (must follow the precedent)
Speech likely to incite violence
"fighting words"
the purpose of tort law
-Provide remedies for invasion of various protected interests -Help physical injuries, physical security, freedom and damage to property
Complaint contains
1. Jurisdiction → The fact necessary for the court to take jurisdiction 2. Legal Theory → a brief summary of the facts necessary to show that the plaintiff is entitled to relief 3. Remedy → a statement of the remedy the plaintiff is seeking
counterclaim
A claim made by a defendant in a lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.
Motion for summary judgement
A motion requesting the court to enter a judgement without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.
Remedies in Equity
A remedy allowed by courts in situations where remedies at law are not appropriate. Remedies in equity are based on settled rules of fairness, justice, and honesty, and include injunction, specific performance, rescission and restitution, and reformation.
Defamation
Act of harming or ruining another's reputation (published or spoken)
rule of four
At least four justices of the Supreme Court must vote to consider a case before it can be heard
Case Example 5.11: Video - Invasion of Privacy
Female sports reporter for ESPN digitally videoed while naked through a peephole in the door of her hotel room.
laws that restrict the content of speech
If a law regulates the content of the expression, it must serve a compelling state interest and must be narrowly written to achieve that interest.
Question of Fact
In a lawsuit an issue that involves only disputed facts, and not what the law is on a given point +Example: Whether a party actually burned a flag
Question of Law
In a lawsuit, an issue involving the application or interpretation of the law +Example: Whether flag burning is a form of speech protected by the First Amendment in the constitution. *Only judge can rule (not jury) on questions of law*
Judicial Branch
Interprets the laws (has the power to hold actions of the other two branches unconstitutional)
In Class Example: Negligence
Nightclub napkin tossing—napkins on floor known to customer and obvious risk, but nightclub liable to customer who slipped on napkin and broke leg because owner has a duty to maintain premises in a safe condition
reply
Procedurally, a plaintiff's response to a defendant's answer/counterclaim.
Substantive vs. Procedural Law
Substantive: laws that define and regulate rights and duties. Procedural: laws that establish methods for enforcing and protecting rights.
Administrative Law
The body of law created by administrative agencies (federal or state) in order to carry out their duties and responsibilities.
chattel
an item of personal, movable property
In terms of public figures, emotional distress claims are..
limited - due to the first amendment
Symbolic speech
nonverbal communication of beliefs including gestures, movements, slogans, and articles of clothing
damages for libel
normally, a plaintiff is entitled to general damages +compensate for nonspecific harms that are difficult to measure
voir dire
part of jury selection process in which an attorney question prospective jurors in making sure it is a fair and impartial jury
Battery
physical contact with another that is unexcused, harmful, or offensive +defendant's act INTENTIONALLY causes harmful or offensive contact with the plaintiff
after commerce clause
prevents states from establishing laws and regulation that would interfere with trade among states (the Constitution gave the national government power to regulate commerce)
False Light
publication of information that places a person in a false light
Arbitration
settling a dispute by agreeing to accept the decision of an impartial outsider +usually legally binding +decision is called the award
legislative caps on damages
state laws may limit amount of damages that can be awarded +more than 1/2 the states placed caps ranging from 250-750k on noneconomic damages
slander per se
statements so inherently harmful that general damages are presumed (no special damages required for it to be actionable)
executive branch
the branch of government that carries out laws and foreign affairs (treaties require the advice and consent of senate)
intentional infliction of emotional distress
tort that is extreme conduct resulting in severe emotional distress to another +exceeds the bounds of decency accepted by society
defenses to defamation
truth and privilege
Suppose Gardner had filed his action in an Illinois State court. Could an Illinois State court have exercised personal jurisdiction over Foreman or his manager?
-No, because the defendants lacked minimum contact with Illinois. -Never came to Illinois, and contract they breached was not formed in Illinois
IF a law restricts the CONTENT of speech, then the law MUST...
-Serve a compelling government interest -Be narrowly tailored to achieve that interest
6 functional fields of business
1. Corporate management 2. Production and transportation 3. Marketing 4. Research and development 5. Accounting and finance 6. Human resource management
Preemption
A doctrine rooted in the supremacy clause of the Constitution that provides that national laws or regulations governing a certain area take precedence over conflicting state laws or regulations governing that same area.
Adjudication
A proceeding in which an *administrative law judge* hears and decides on issues that arise when an administrative agency charges a person or a firm with an agency violation
Interpretive rules
Administrative agency rules that simply declare policies or explain the agency's positions and do not establish any legal rights or obligations
Precedent
Court decision that stands as an example to be followed in future, similar cases
in rem jurisdiction
Court jurisdiction over a property involved in the case
Departures from Precedent (RARE)
Courts are obligated to follow precedent; HOWEVER, if a court decides that precedent is incorrect or technological/social changes have made the precedent inapplicable, the court may rule contrary to the precedent
Causation
Defendant's wrongful act must CAUSE the harm to the plaintiff
Case Example 5.8
Eddy, a meat cutter at Costco was involved in a workplace incident with a coworker and Costco gave him a notice of suspension. After investigation of interviewing coworkers Costco fired Eddy. Eddy then sued claiming the suspension notice was defamatory. The court ruled in Costco's favor because Eddy had not shown that the suspension notice was published to any third parties. Costco did nothing beyond what was necessary to investigate the events that led to Eddy's termination
Case Example 5.5: Attack - Intentional Infliction of Emotional Distress
Father attacks a man who has had consensual sexual relations with the fathers 19 year old daughter. The father handcuffs the man to a steel pole and threatens to kill him unless he leaves town immediately. The father's conduct may be sufficiently extreme and outrageous to be actionable as an intentional infliction of emotional distress
Bill of Rights
First 10 amendments to the Constitution to give individuals and corporations protection against federal government +14th amendment offered protection against state governments as well
Case Example 5.4: Casino - False Imprisonment
Justin was playing blackjack at a casino when two casino employees grabbed him and brought him into a hallway in the back. They accused him of counting cards and demanded identification not letting him leave until he did. Mills showed his passport and was released but he recorded the audio from his phone. He then later filed a lawsuit alleging false imprisonment. Federal court granted Mills a summary judgement because the casino personnel had no legal justification for detaining him
Statutory Law
Law enacted by legislature at any level of government such as federal, state, and local governments (includes ordinances)
A state "long-arm" statute permits a court to exercise jurisdiction over an out-of-state resident/defendant IF the plaintiff can convince the court that the out-of-state defendant had at least WHAT KIND OF CONTACTS with the state?
Minimum contacts
courts online
Most courts have websites where information, forms, decisions, etc. can be found
Arbitration Statutes
Most states have statutes under which arbitration clauses will be enforced
Ben throws a rock at Cindy while Cindy is not looking. Has Ben committed an assault?
No - Tort law of assault requires the person to feel scared or threatened and since she wasn't looking and didn't know it was coming, he didn't commit assault
Example: An innocent mistake can still result in liability of conversion
Someone who buys stolen goods can be sued for conversion even if they didn't know it was stolen. And if the owner sues over the goods then the buyer must return or pay the owner for the full value of the item
Reasonable Person Standard
The defendant must act the way any "reasonably prudent person/reasonable person" would act under similar circumstances.
original jurisdiction
The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.
judicial review
The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch.
litigation
The process of resolving a dispute through the court system.
If Ann is driving a car and purposefully aims at and runs over Bill, did Anne intend to harm Bill?
YES
In-Class Example: If you work for a private company in Colorado and have marijuana in pocket and it falls out?
Your boss can fire you
Invasion of Privacy Torts
appropriation, intrusion, public disclosure of private facts, false light
Appellate courts typically defer (give significant weight) to a trial court's....
findings on questions of fact +Only will challenge questions of fact by trial courts if clearly wrong
truth
if the statement is true, it is not defamation
federal court system
it is a tree-tiered model similar to the state court system
trial courts of general jurisdiction
jurisdiction over wide variety of subjects including civil disputes and criminal prosecutions +May be called county, district, superior, or circuit court
How does law interact with business?
laws and government regulations affect all business activities
legally recognizable injury
loss, harm, wrong, or invasion of a protected interest
intervening
must occur after defendant's initial act
Wrongful Interference with Business Relationship
*Businesspersons devise countless schemes to attract customers BUT are prohibited from unreasonably interfering with another business in their attempt to gain a sale* 1. ECONOMIC EXPECTANCY must exist between the two parties (walking into a shoe store) Third party must KNOW the economic expectancy (other shoe store sees you come over and interjects bringing customer into her shoe store) Third party must INTENTIONALLY interfere with economic expectancy and plaintiff must suffer damages (bought shoes from other store)
State court system
*Each state has its own state court system* May include: 1. Trial Courts of Limited Jurisdiction 2. Trial Courts of General Jurisdiction 3. Appellate Court 4. The State's highest court (often called the supreme court)
Primary Sources of Law (ESTABLISH LAW)
- The US Constitution and the constitutions of the various states - Statutory Law: including laws passed by Congress, state legislatures, and local governing bodies - Regulations created by administrative agencies, such as the Food and Drug Administration - Case Law and Common Law doctrines (court decisions)
establishing trespass
-"Trespasser" must have NOTICE that he is trespassing +Ex. no trespassing sign, fence, or email to neighbors asking not to come on property -Trespasser entered property to commit an ILLEGAL act -No HARM/DAMAGE need to occur to the land
diversity of citizenship
-A corporation is deemed a citizen of both The state where it is incorporated AND The state where its principal place of business (e.g. office) is located -Subject Matter Jurisdiction based on Diversity of Citizenship + $75,000 -IF Diversity of Citizenship is the basis of federal subject matter jurisdiction, the federal court will apply STATE LAW.
Service of Process and Summons:
-A defendant is "served" with the complaint and "summoned" to file an answer with the court (if defendant does not file, a default judgment will be entered against the defendant) -The summons notifies must file an answer to the complaint within a specified time period (twenty days in federal court) or suffer a default judgement
Closing Arguments and Awards
-After defense attorneys presentation the attorneys present their closing remarks -jury/judge will decide in favor of one side and decide on an award (ex: monetary compensation)
Enforcement and Investigation
-Agencies often enforce their own rules -In conducting investigations regarding rule violations, agencies can have subpoena power (request for individuals and organizations to hand over specified books, papers, electronic records) -And may take action against the accused -On sight inspections, most issues are resolved through negotiation but if not, the agency issues a formal complaint and proceeds to adjudication
United States Supreme Court
-All other courts in the federal system are considered inferior -Consist of 9 justices (odd) -Can review any case decided by any court of appeals -All judges nominated by the president and approved by senate -Keep job for life -Take oath to be neutral
Opening Arguments and Examination of Witnesses
-At the beginning of trial the attorney present their opening arguments setting forth the facts that they expect to prove Then the plaintiff's case is presented. The defendant has the opportunity to challenge any evidence introduced and cross-examine any of the plaintiffs witnesses -After the defendant has the opportunity to ask the judge to direct a verdict for the defendant on the ground that the plaintiff has presented no evidence that would justify the granting of the plaintiff''s remedy, called motion for a directed verdict
Right to Privacy
-Compensates plaintiff for injury to emotional sensibilities/psychological well-being -Prevents intrusion into private space or psychological interests in safety and security
difference between defamation and right to privacy
-Defamation- seeks to address injury to reputation (victims relationship to outside world -Right to Privacy- Seeks to address injury to victim's "feelings," emotional sensitivities, or mental suffering
To recover under the tort of negligence, the plaintiff must prove the following:
-Duty -Breach of duty -Causation -Damages
Applicability of statutes
-Federal statute applies to all states -State statute only applies within state borders and vary state to state -no federal statute or state statute can violate the US Constitution
Minimum contact questions
-Has a defendant engaged in a transaction or activity with the forum by which he avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws? -Does claim arise out of the defendant's forum related activities? -Is jurisdiction reasonable?
Structure of Federal and State Courts
-Highest Appellate Court → supreme court -Intermediate Appellate Courts → courts of appeal -Trial Level Courts → both general and specialized jurisdiction; only listen to certain cases
Symbolic Speech protected under 1st amendment test: Did the speaker INTEND to convey a particular message/expression?Would the particular message/expression be understood by those who viewed it?
-If answer to BOTH is yes= speech is protected -If answer to either question is NO= speech may not be protected
Case Example 2.3:
-Man alleged that he had been injured by a faulty medical device (balloon catheter had been inserted into his artery following a heart attack) -Sued the manufacturer -The medical device had passed the USFDA approval so the federal Medical Device Act prevents state law claims of negligence
Case Example 2.2:
-Maryland imposed personal income taxes on residents at state and county levels -Maryland residents who paid income tax in another state were allowed credit against the state portion but not county -Claimed Maryland's system discriminated against interstate commerce because those who earned income in other states paid more taxes than residents whose only income came within Maryland -When the case went to US Supreme Court in 2015 the court held that Maryland's personal income tax scheme violated dormant commerce clause
Statement of Fact vs. Statement of Opinion
-Statement of Opinions are not actionable. (tort of misrepresentation relies on statement of fact) -Opinions from Experts can be actionable, and injured party can seek rescission or reformation.
Remedies for Conversion
-True owner may ask for the return of his property -True owner may ask for the monetary value of the property
What if Gardner had filed his action in Nevada State Court? Would that court have had personal jurisdiction over Foreman or his manager?
-Yes, because they met in Nevada and formed a contract there. -Long Arm Statute-- defendants had significant contacts with the state.
defenses for intentional torts
-consent -defense (of self, others, property) -necessity
Defenses to False Imprisonment
-consent -statute of limitations (reasonable amount of time) -defense (self and others) -privilege to detain
Can deem jurisdiction if a
-corporation or individual advertises products within X state, places goods in the "stream of commerce" with intent to sell in X state, forms a contract with the state
Proof of slander of quality
-false publication caused 3rd party to turn away from plaintiff organization and they then suffered economic damages --improper publication may be both slander of quality and defamation
elements of tort
-false statement of fact -any intent to harm reputation or character -published or spoken to a third party +If plaintiff is an ORDINARY PERSON the plaintiff must prove defendant acted with FAULT +If plaintiff is a PUBLIC FIGURE the plaintiff must prove defendant acted with ACTUAL MALICE
To sue successful for invasion of privacy a person must:
-have reasonable expectations of privacy -the invasion must be highly offensive
Must prove:
-intended to harm -intended to commit the act -knew with substantial certainty that the result would occur
trespass to personal property
-intentional interference with personal property +intentional damage to the chattel +deprivation of the owner's use +stealing the chattel -no bad faith is required, it can be an accident
Intrusion into an individual's affairs or seclusion
-invading a private place, conversation, or matter -held to the extent of eavesdropping, unauthorized bank account scanning, window peeping -court will look at degree of intrusion, context, conduct, and circumstance
Defenses to Wrongful Interference
-proof that interference was justified/permissible +Ex) Aggressive marketing aimed at a broad audience (rather than targeting individuals walking into a rival store) is considered fair marketing practice
High schools may restrict on and off-campus speech IF the school can show that
-the speech is likely to "substantially disrupt" school activities -the restriction on speech is narrowly tailored to achieve the school's interest in fostering a positive educational environment
Liability for Harm
-trespasser is liable for any damage to the property -property owner is liable for any harm caused to people on their property, even trespassers (reasonable duty of care) -Owner can use reasonable force to remove trespasser or detain them for reasonable time
Federal Courts have subject matter jurisdiction when either:
1) "issue or diversity of citizenship" is at issue OR 2) "amount in controversy" between parties exists AND the amount in controversy EXCEEDS $75,000
Notice-and-Comment Rulemaking (legislative rules)
1) Notice of proposed rulemaking - notice must be published in Federal Register 2) Comment period - time for interested parties to comment on the proposed rule 3) Final rule - once drafted, final rule is published in Federal Register
Business people identify ___1___, avoid __2__, apply __3__, maintain __4__, and choose the __5__.
1) legal issues 2) liability 3) laws 4) ethics 5) best course of action
Elements of Fraudulent Misrepresentation
1. A misrepresentation of a material fact must occur 2. There must be an intent to deceive 3. The innocent party must justifiably rely on the misrepresentation 4. To collect damages, a party must have been harmed as a result of the misrepresentation
Basic Steps in Legal Reasoning
1. Issue - what are the key facts and issues? +read through case problems and understand the plaintiff (sueing) and defendant (being sued) 2. Rule - what rule of law applies to the case? +more than one rule of law will be applicable 3. Application - how does the rule of law apply to the particular facts of this case? +cases on point: judges try to find previously decided cases that are similar (usually difficult as each case presents unique facts) 4. Conclusion - what conclusion should be drawn? +no one right answer +good arguments are made by support of either side of legal controversy
the court will only challenge the decision (award) if:
1. The arbitrator conduct or "bad faith" substantially prejudiced the rights of one of the parties 2. The award violates an established public policy 3. The arbitrator exceeded her/his powers
After reviewing the case an appellate court has the following options:
1. The court can affirm the trial court's decision 2. The court can reverse the trial court's judgement if it concludes that the trial court ended or that the jury did not receive proper instructions 3. Appellate court can remand (send back) the case to the trial court for further proceedings consistent with its opinion on the matter 4. The court might also affirm or reverse a decision in part. For instance, the court might affirm the jury's findings that Anderson was negligent but remand the case for further proceedings on another issue 5. An appellate court can also modify a lower court's decision. If the appellate court decides that the jury awarded an excessive amount of damages, for instance, the court might reduce the award to a more appropriate, or fairer, amount
Two questions of causation
1.Is there causation in fact? -when the plaintiff can prove that his injury would not have occurred "but for the defendant's act (or failure to act)." 2.Was the defendant's act the proximate cause of the plaintiff's injury?
An employee in Kohl's just finished mopping the hard floor after a customer spilled coffee. The employee completed her mopping, then went to find a "Caution: Wet Floor" sign to place on the wet spot. Before the employee returned with the sign, Jen slipped, fell, and injured herself. If Jen sues Kohl's, will the store likely be held liable for negligence? A.Yes - employee should've put out sign immediately B.No
A
While a female patient is under anesthesia, a nurse draws a mustache and whiskers on the patient's face, snaps a photo, and e-mails the photo to friends. A.The patient may sue the nurse for libel → Photo can be base for defamation, Libel- recorded B.The patient may sue the nurse for slander - not recorded
A
Justiciable Controversy
A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.
Case Example 4.8: Being Served
A county in New York filed a petition to remove a minor child, J.T, from his mother's care due to neglect. The child's father had been deported to Jordan, and the county sought to terminate the father's parental rights.Although the father's exact whereabouts were unknown, the county caseworker had been in contact with him via email. Therefore the court allowed the father to be served via email because it was reasonably calculated to inform him of the proceedings and allow him an opportunity to respond
Administrative Agency
A federal, state, or local government agency created and authorized by legislation to administer and enforce specific laws.
special damages
A form of compensatory damages that awards a sum of money for specific, identifiable expenses associated with the injured person's loss, such as medical expenses or lost wages.
discovery
A method by which the opposing parties obtain information from each other to prepare for trial. +gaining access to witnesses, documents, record, and other evidence
Uniform Law (NOT A LAW UNTIL ADOPTED BY LEGISLATION)
A model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute (unofficial legislative proposal) +used to promote consistency among the 50 states +each state has the option of adopting or rejecting +state legislatures can adopt parts of a uniform law or rewrite a section
Compensatory Damages
A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party. +meant to put the plaintiff in the same position as if tort never happened
damages
A monetary award sought as a remedy for a breach of contract or a tortious action. +compensatory and punitive
general damages
A monetary award to compensate a victim for losses, such as pain and suffering, that do not involve specific measurable expenses.
motion for a new trial
A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice
Motion for Judgement on the Pleadings
A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
motion for a directed verdict
A motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support her or his claim. +If not granted the defendant's attorney then presents evidence and witnesses for the defendants case +After, defense attorney has another opportunity to make a motion for directed verdict
motion for judgement n.o.v.
A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury's verdict against him was unreasonable or erroneous
Request for Other Information
A party can serve a written request on the other party for an admission of the truth on matters relating to the trial
federal question
A question that has to do with the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.
Forseeability
A reasonable expectation that certain events will cause specific results.
puffery
A salesperson's exaggerated claims concerning the quality of goods offered for sale. Such claims involve opinions rather than facts and are not considered to be legally binding promises or warranties. NOT FRAUD
Checks and Balances
A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power
Wickard v. Filburn (1942)
A wheat farmer was producing wheat for individual consumption only +Supreme Court ruled that their production was subject to federal regulation since it affected the market demand for wheat and could have a substantial impact on interstate commerce
intentional tort
A wrongful act knowingly committed.
Sovereignty
Ability of a state to govern its territory free from control by other states.
Case Example 2.9: Threatening Speech
After Anthony Elonis's wife Tara left him and took their two kids Elonis was upset and then had problems at work. A coworker filed 5 sexual harassment reports against him. When Elonis posted a photo of himself in a halloween costume holding a toy knife to a coworker's neck he was fired. He then started posting violent statements on Facebook mostly about Tara. He must have known he was intending issues of threats and they would be considered a crime. The court reversed Elonis;s conviction and remanded the case to a lower court to determine sufficient evidence of intent
In-Class Example: You get on a plane in Colorado with marijuana?
Airline is a federal entity so even though you are in a legalized state for that item it is still illegal.
Case Example 5.2: Baseball - Intentional torts
Alex swings a bat intending to hit Blake but misses and hits Carson instead. Carson can sue Alex for the tort of battery because Alex's intent to hurt Blake can be transferred to Carson
Legislative rules
An administrative agency rule that carries the same weight as a congressionally enacted statute
Case Example 5.13: Imitating Voice - Appropriation of Identity
An advertising agency asks a singer with a distinctive voice and stage presence to do a marketing campaign for a new car. If the singer rejects the offer and the agency uses someone who imitates the singer in the ad this would be actionable as an appropriation of identity
Case Example 2.2: Fund v. Wasden - Content Based Restrictions
An animal rights activist worked on a Idaho dairy farm where he secretly filmed ongoing animal abuse and it received national attention. Dairy owners fired the abusive employees and established a code of conduct. Idaho state legislature enacted interference with agricultural production statute targeted at undercover investigation of agricultural operations. The statutes recording clause criminalized making audio and video recordings without the facility owners consent. The animal legal defense fund filed a suit in a federal district court against Lawrence Wasden the Idaho attorney general alleging that the statutes recording clause violates the first amendment. The court issued an injunction against its enforcement of the statute because the first amendment protects audiovisual recordings as a recognized medium of public opinion. +State of Idaho prosecuted an animal rights activist who made secret recordings of animal abuse at a dairy farm. Idaho statute criminalized making audio and video recordings of an agricultural production facility without owner's consent +law suppressed more speech than necessary (unconstitutional)
Disparagement of Property
An economically injurious false statement made about another's product or property. A general term for torts that are more specifically referred to as slander of quality or slander of title.
writ of certiorari
An order by a higher court directing a lower court to send up a case for review
If Andy shoots an arrow over Sarah's head, desires to cause Sarah apprehension, and causes Sarah to feel apprehensive, then
Andy is liable for assault - he desired to scare her
Persuasive Authority
Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision.
Appellate or Review Courts (state district)
Appellate court generally focuses on question of law not question of fact +Every state has at least one court of appeals (appellate or review court)
Supremacy Clause
Article VI of the Constitution makes the Constitution, national laws, and treaties of the US the "supreme law of the land" +when there is a direct conflict between federal and state law, state law is made invalid
The Appeal
Assuming post trial motions are denied and that the defendant appeals the case, the party must have legitimate grounds to file an appeal
Following a State Court Case Example:
Automobile accident occurred between Kevin Anderson, driving a Lexus, struck Lisa Marconi, driving a Hyundai Genesis. The accident occured at the intersection of Wilshire Blvd. and Rodeo Drive in Beverly Hills California. Marconi suffered personal injuries and incurred medical and hospital expenses as a result, as well as lost wages for four months. Anderson and Marconi are unable to agree on a settlement, and Marconi sues Anderson. Marconi is the plaintiff, and Anderson is the defendant. Both are represented by lawyers
Juan carelessly bumps into Maya who falls and breaks her arm. If Maya sues Juan, which of the following statements true? A. Juan will be liable for the intentional tort of battery; B Juan will not be liable for battery, but may be liable for the tort of negligence - no intent
B
Which party's residence or minimum contacts within the court's geographic region is/are relevant to establishing personal jurisdiction? A.Plaintiff B.Defendant
B
Bad Frog Brewery Inc vs. New York State Liquor Authority
Bad frog brewery Inc makes and sells alcoholic beverages. Some of them feature labels with a drawing of a frog making the gesture known as the middle finger. Renaissance Beer Company was Bad Frog authorized NY distributor. Renaissance applied to NY state liquor authority for brand label approval and NYSLA denied the application. Due to the label could appear in grocery and convenience stores with obvious exposure on the shelf to young children. Bad Frog filed a suit in federal district court against NYSLA but court filed favor of NYSLA. Bad Frog then appealed to the US court of appeals for second circuit. +NYSLA's denial of Bad Frogs application violated first amendment. The ban on use of labels lacked reasonable fit with states interest shielding minors. Also NYSLA did not consider alternatives to the ban. NYSLA could have placed restriction on the permissible locations where the product could be displayed in stores
Secondary Sources of Law (INTERPRET LAW)
Books and articles that summarize and clarify the primary sources of law +Courts often use secondary sources for guidance in interpreting primary sources +Examples: legal encyclopedias, official comments to statutes, compilations
Case Example 1.6: Brown vs Board of Education - Departure from Precedent
Brown vs Board of Education of Topeka. The court found that separate educational facilities for blacks/whites which used to be considered constitutional were unequal. The supreme court departure from precedent in the Brown decision received a lot of attention
Case Example 4.13: Cox Communications - Arbitration
Cable subscribers sued Cox Communications in federal court. They claimed that Cox violated antitrust law by trying premium cable services to the rental of set up cable boxes. Cox filed a motion to compel arbitration based on an agreement it had sent to subscribers. A district court granted motion to compel, and the subscribers appealed. A federal appellate court affirmed, based on the Federal Arbitration Act. The subscribers antitrust claims fell within the scope of the arbitration agreement +Subscribers won
Case Example 2.8: Cafe Erotica - Restriction on Commercial Speech
Cafe Erotica, a nude dancing establishment sues the state after being denied a permit to erect a billboard along an interstate highway. The state's legitimate interest in highway beautification and safety means that a court will likely rules that it is not an unconstitutional restrain on commercial speech.
Case Example 5.20: Borrowed iPad - Conversion
Chen borrowed Mark's IPad to use while traveling home from school. When Chen returns Mark asks for his IPad back but Chen tells Mark he gave the IPad to his little brother. Mark can sue Chen for conversion and Chen will either have to return it or pay the replacement value
Case Example 4.7: Door-to-Door Advocacy - Appealing
City enacts an ordinance that prohibits citizens from engaging in door-to-door advocacy without first registering with the mayor's office and receiving a permit. A religious group then sues the city arguing that it violates freedom of speech and religion by first amendment. If the state supreme court upholds the law the group could appeal the decision to the US supreme court because constitutional (federal) issue is involved
Civil Law vs. Criminal Law
Civil: cases considering liability dealing with the private rights/duties between persons or persons and the government (usually a private party sues another private party - no jail time, obtain a remedy to compensate harmed party) Criminal: punishes wrongful actions committed against the public (prosecuted by public officials on behalf of the state - jail time) +a person can file a civil lawsuit only after the criminal lawsuit is filed by the government
Commercial Speech
Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court. +protecting consumers from being misled +Can be restricted if: -The government seeks to address a reasonable/substantial government interest -The restriction directly advances the interest -The restriction is narrowly tailored to accomplish the objective of advancing that interest
Black vs. Giustibelli
Copia retained attorney Ann to represent her in a divorce against Peter. Copia agreed to pay Ann $300 an hour. After the marriage was dissolved and the related issues were resolved Ann sought payment for her services. Copia was annoyed at the price and posted negative reviews of Ann online saying "she misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claim." Ann filed a suit against Copia against libel. During the trial Copia admitted that Ann had not charged her 4 times more than what was quoted in the agreement. The court favored Ann and awarded $350k in punitive damages. Review was a statement of fact +The reviews contained allegations of Ann lying to Copia regarding the attorneys fee and falsified a contract. These are factual allegations and were false
What requirements must be met before a court can hear a case/lawsuit? A. jurisdiction B. venue c. standing to sue d. all of the above
D
US Court of Appeals
Decides cases which are appealed from the federal district courts in their respective judicial circuits +intermediate court of appeals +13 US Court of Appeal, or US circuit courts of appeal +13 federal circuit consists of 1 court of appeals and 1 or more district courts -11 circuits numbered (1st circuit, 2nd circuit, etc.), DC circuit, and Federal Circuit (13th circuit - jurisdiction over cases of patent law, some international trade disputes, some damage claims against US govt)
In Class: Vanna White vs Samsung - Right to Publicity
Defendant advertising agency prepared a series of advertisements for Samsung. One particular ad depicted a robot dressed in a wig, gown and jewelry, selected to resemble plaintiff TV host Vanna White's hair and dress. Unlike the other celebrities used in the advertising campaign, plaintiff neither consented to nor was paid for the ads. Plaintiff commenced an action against defendants alleging infringement of various intellectual property rights under state and federal law. The district court granted summary judgment in favor of defendants. The court affirmed the grant of summary judgment on the right of privacy claim, but reversed the judgment on the right to publicity and the Lanham Act claims. +ad used White's persona to promote their product without her consent or giving her just compensation
Case Example 1.8: Injured by Rowan - Remedy
Elena is injured by Rowan. Elena can file a lawsuit and if she is successful a court can order Rowan to compensation. The compensation is Elena's remedy
Failure to Return Goods
Even if the rightful owner consented to the initial taking of the property, a failure to return the property may still be conversion
Reasonable Restrictions
Expression (oral, written, or symbolized by conduct) is subject to reasonable restrictions +content neutral laws apply to all expression without regard to substance or message (regulate time, place, and manner - but not content)
Hustler Magazine vs Falwell (1988)
FACT: Hustler magazine printed a fake advertisement that showed a picture of reverend Jerry Falwell and described him as having lost his virginity to his mother in an outhouse while he was drunk. Falwell sued the magazine for intentional infliction of emotional distress and won but the US supreme court overturned the decision. The court held that creators of parodies of public figures are protected under first amendment from claims of intentional emotional distress -- *no malice, loss of freedom of press* HOLDING: Does the First Amendment's freedom of speech protection extend to the making of blatantly offensive statements about public figures, resulting perhaps in their suffering emotional distress? REASONING: Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice
Sliding Scale Case 4-5
FACT: Louisiana resident purchased a bicycle listed on eBay by a Wisconsin resident. The Wisconsin resident (seller) shipped the bike to the purchaser's Louisiana residence. While riding his new bike in Louisiana, the purchaser claims he suffered injury because the seller negligently removed a bike safety feature. The Louisiana purchaser filed a lawsuit against the Wisconsin seller in the state court of Louisiana. The single bike shipment was the ONLY contact the Wisconsin resident had with Louisiana. The Wisconsin resident had not initiated communications with the purchaser, the only "discussions" about the purchase were made via the internet, payment was made through PayPal (an intermediary), and the seller had no other contacts with Louisiana. The seller did NOT regularly use eBay to sell items. Given the facts of this case, the Wisconsin resident claimed the Louisiana court did not have jurisdiction. QUESTION:Did the Louisiana court hold that the Wisconsin seller had sufficient minimum contacts with Louisiana for the Louisiana court to exercise jurisdiction? DECISION:The state court ruled that the state did not have jurisdiction over Boelter. REASON: Boelter did not have any prior relationships with Delahoussaye only over the internet. Payment was made through an intermediary, Paypal, and Boelter shipped the bike to Louisiana. The single bicycle sale to Delahoussaye over Ebay was not enough to give Louisiana state jurisdiction over Boelter
Gucci America, Inc. v. Wang Huoqing
FACT: Wang Huoqing, a resident of China, operates numerous websites. When Gucci discovers Huoqing is selling counterfeit goods --products that carry Gucci trademarks but are not genuine Gucci articles--it hired a private investigator in San Jose, California to buy goods from the websites. The investigator purchased a gucci wallet that was counterfeit. Gucci filed a trademark infringement lawsuit against Huoqing in a federal district court in California seeking damages and an injunction to prevent further infringement. Huoqing was notified of the lawsuit via email but did not appear in court. Gucci asked the court to enter a default judgement-- that is, a judgement entered when the defendant fails to appear in court. The court first had to determine whether it had personal jurisdiction over Huoqing based on internet sales QUESTION: Could a U.S Federal District Court exercise personal jurisdiction over a resident of China whose only contact with the U.S was through interactive websites that advertised and sold counterfeit goods DECISION: Yes, The U.S federal district court for the Northern District of California held that it had personal jurisdiction over the foreign defendant, Huoqing. The court entered a default judgement against Huoqing and granted Gucci injunction. REASON: The court reasoned that the due process clause allows a federal court to excercise jurisdiction over a defendant who has had sufficient minimum contacts with the court's forum. Specifically jurisdiction exist when 1. The nonresident defendant engages in some act or transaction with the forum "by which he purposely avails himself of the privilege of conducting activities in the forum, thereby invoking benefits and protection of its laws 2. The claim must be one which arises out of a result from the defendant's forum-related activities; 3. And exercise of jurisdiction must be reasonable +To determine whether Huoqing had purposely conducted business activities in California, the court used a sliding scale analysis. Under this analysis passive website do not create sufficient contacts for such findings, but interactive sites may do so. Huoqing's websites were fully interactive. In addition, Gucci provided evidence that Huoqing had advertised and sold counterfeited goods within the court district, and made one sale --to the private investigator
Case 4.2: Ji-haw Industrial v. Broquet
FACT: xbox game system caught fire in Bonnie Broquet's home in Texas and caused injuries. Broquet filed suit in Texas court against Ji-haw industrial Co., a nonresident company that made the XBox components.Broquet alleged that Ji-haw's components were defective and had caused the fire. Ji-Haw argued that texas court lacked jurisdiction QUESTION: Does Texas court have jurisdiction over Ji-haw? RESULT: State appellate court held that the Texas long arm statute authorized the exercise of jurisdiction minimum contacts with non-resident party, Long Arm Statute
Kidde Aerospace v. IPC
IPC is a corporation incorporated and with its only offices and personnel in NJ. It does not advertise out of state, but has a long-standing relationship with NC company Kidde Aerospace. Within one year, 32 purchase orders with invoices totaling more than $21,000 were exchanged between the parties, and all fees were paid by Kidde's parent corporation. When a dispute arose between Kidde Aerospace and IPC, Kidde filed suit in North Carolina (NC). IPC filed a motion to dismiss the case on the grounds that NC had no jurisdiction. +The NC court ultimately ruled in favor of Kidde Aerospace and determined Kidde Aerospace had sufficient MINIMUM CONTACTS within North Carolina for the North Carolina courts to have jurisdiction
Case Example 5.18: Strong Advertising - Defense to Wrongful Interference
If Antonio's Meats advertises so effectively that it induces Sam's restaurant to break its contract with Burkes Meat Company. Burke's will be unable to recover against Antonio's Meats on wrongful interference theory. The public policy that favors free competition in advertising outweighs possibly instability that such competitive activity might cause in contractual relationships.
Defenses for Negligence
If a plaintiff: A.) Had knowledge of the risk; AND B.) Voluntarily assumed the risk of injury (expressly or impliedly)
Case Example 5.10: Beckham v. Bauer Pub. Co. - Public Figures and Defamation
In Touch Weekly magazine published a story about a former call girl who claimed to have slept with David Beckham. Beckham sued the magazine for libel seeking $25 million in damages. He said he never met her, never cheated on his wife, and had not paid her for sex. After months of litigation federal district court dismissed the case because Beckham could not show that the magazine acted with actual malice. The magazine spoke to the woman, which is a first hand source. Whether the statements in the article were accurate there was no evidence the defendant had made the statement with knowledge of falsity or disregard for truth.
Palsgraf v. Long Island Railroad: foreseeability to establish proximate cause
In the late 1800s, doors could be open when train moving. A man carrying fireworks was pushed by employees to help him get on train. Fireworks exploded and blast hit a scale and hit Palsgrath, he sued train company. →would it be foreseeable to see the effect of pushing the person? → Not ruled guilty because there was no proximate cause between the pushing of the man and the injury he received no proximate cause
Pretrial Conference
Informal discussion between judge and other (opposing) attorney after discovery has taken place
Case Example 5.3: Firing the Gun - Battery
Ivan threatens Jean with a gun then shoots her. The points of the gun at jean is assault and the firing of the gun was battery
Case Example 4.11: Electronic discovery
John McAfee the programmer responsible for creating McAfee antivirus software was wanted for questioning in the murder of his neighbor in Belize. McAfee left Belize and was on the run from police but left with a journalist. When the journalist took photos of McAfee and posted them online metadata was attached to the photo so police were able to pinpoint his location
Case Example 5.9: Company Emails - Qualified Privilege
Jorge worked at Google for 5 years and is being considered for a management position. His supervisor Lydia writes an email about Jorges performance to evaluate him for the position. The message contains certain negative statements which Lydia believes are true. If Lydia limits the disclosure of the content to company representatives her statements will be protected by qualified privilege
Case Example 5.15: Sewage - Fraudulent Misrepresentation of Facts
Joseph Guido bought 9 rental houses in Stillwater NY. The houses shared a waste disposal system that was not functioning. Guido hired someone to design and install a new system. The town found sewage on the property, Guido particularly replaced the system. He then told prospective buyers that the septic system was totally new and on the questionnaire from the buyers bank denied any knowledge of environmental problems. Month after the sale, the septic system failed and required repairs. Buyers sued Guido for fraud. Jury favored the plaintiff and awarded damages. Guido knew the septic system wasn't totally new and that sewage had been released on the property. He misrepresented facts to the buyer and they believed him because during visual inspection there were no problems. +Buyer won because through reasonable inspection there was no way of knowing that septic system was defective and Guido intentionally misled buyer
Case Example 5.19: BLAW Book - Trespass to Personal Property
Kelly takes Ryan's business law book as a joke and hides it so Ryan is unable to find it for days before the final. Kelly engaged in a trespass to personal property
Klipsch Group, Inc v. ePRO E-Commerce Limited
Klipsch makes sound equipment. Klipsch filed a suit in federal district court against ePRO alleging ePRO has sold $5million in counterfeit Klipsch products. ePRO claims they sold less than $8,000 worldwide in the counterfeit product. In response to discovery request, ePRO failed to timely disclose the majority of the responsive documents in its possession. ePRO also restricts Klipsch access to its e-data. The court directed ePRO to impose a litigation hold on the custodians of the data to preserve evidence, but the defendant failed to do so. Klipsch spent $2.7 million on a forensic examination to determine what had been blocked, lost, and what might be recovered. The court concluded that ePRO willingly engaged in spoliation of e-evidence. For this misconduct, the court imposed sanctions, including an order to pay Klipsch the entire $2.7 mill for its restorative discovery efforts. ePRO appealed. ISSUE Was it appropriate to impose on ePRO the cost of Klipsch's corrective discovery efforts DECISION Yes, the court of Appeals for the Second Circuit affirmed the imposition of the sanctions. "The district court's award properly reflects the additional costs ePRO imposed on it's opponent by refusing to comply w discovery obligations. ePRO failed to comply with discovery obligations , which caused Klipsch to incur considerable additional expenses. A party's compliance with a discovery request is not optional. Discovery depends on the parties voluntary preservation of evidence and disclosure of relevant information when asked. Discovery sanctions are appropriate to discourage delaying facts and related misconduct.
Example of Statement of Opinion counting as a fact:
Lawyer makes a statement of opinion about the law in a state that they are licensed to practice a court would treat it as a statement of fact
Proximate Cause
Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.
Case Example 1.1: Facebook - Law and Business
Mark Zuckerberg first launched Facebook, others claimed he stole their ideas of a social networking site. They filed a lawsuit against him alleging theft of intellectual property misrepresentations and violations of partnership law. Facebook paid $65 million to settle those claims.
punitive damages
Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future. +awarder only if plaintiff proves that the defendant's conduct was egregious or reprehensible
If Bill picks up a heavy box and accidentally drops it on Ann, did Bill intend to harm Ann
NO - anytime there is a pure accident, there is NO INTENT
Assume that ACME construction company is working on a building project out of sight of the camera. They are installing sewer lines. The object you see fly into the police car is a 20 foot long piece of sewage pipe. The sewage pipe rolled off one of ACME's trucks because an ACME employee failed to properly secure the load. Is it likely that a court would determine ACME's negligent failure to secure the sewage pipe as the "proximate cause" of the house explosion at the end of the clip?
NO - doesnt past foreseeability test
A tabloid newspaper publishes a story that indicates celebrity Jennifer Hudson has a drinking problem. In fact, Hudson does not have a drinking problem, but the newspaper has collected dozens of paparazzi pictures of Hudson drinking alcohol. If Hudson sues the tabloid newspaper for defamation, will Hudson be likely to win?
NO. Jen prove shes not an alcoholic, newspaper knew she wasn't but lied, Jen prove that the newspaper did absolutely nothing about a background case.Media doesn't have to be correct as long as they made an effort to investigate a story. Such as a news reporter talking to a friend of jen and jen friend said im worried about jen having a drink problem, then the paper comes out and says jen has a drinking problem the newspaper can be sued by jen, maybe the friend can be sued who said that.
Case Example 5.14: Naked Cowboy - Right of Publicity
Naked Cowboy, Robert Burck was a street entertainer in NYC who achieved some fame performing for tourists. He performed only wearing a white cowboy hat, boots, and underwear carrying a guitar placed to give the illusion of nudity. Burck sued Mars Inc. of M&M's candy over a video on billboards in Time Square to depict blue M&M's dressed like the Naked Cowboy. The court held that the use of Burck's signature costume did not amount to appropriation. That is because cartoons/characters don't have rights to publicity
National vs. International Law
National: pertains to a particular nation's set of laws that government officials can enforce International: written or unwritten laws governing relations among nations
Example of Public Disclosure of Private Facts
Newspaper account found private informations about citizens sex life or financial affairs. Even though the information is true it should not be a matter of public concern
Jeff is driving his car on College Avenue. Jeff has terrible eyesight, but he forgot to wear his contacts or glasses that day. Jeff hits a student who is crossing the street. Using the "reasonable person" standard, would a jury likely conclude that Jeff acted reasonably?
No - a reasonable person would not drive without proper vision
Mackenzie , a season ticket holder, went to a baseball game at Three Rivers Stadium. She purchased a ticket and took her seat. At the game, she was seriously injured when a foul ball struck her in the face. Three Rivers Stadium is constructed with protections for fans (in accord with national stadium regulations), they announce during games that spectators should be aware of foul balls, they include signage that indicates the potential spectator risk, and they include assumption of risk language in the signs and on the back of all tickets. If Mackenzie sues Three Rivers Stadium, is she likely to win?
No because Mackenzie assumed the risk of injury
Ben is carelessly balancing a tall pile of boxes in his hands as he walks past cindy. Ben didn't think the boxes would fall, but cindy is afraid the boxes are going to fall on her. Has Ben committed assault?
No- but could be sued for negligence, no intent/desire for apprehension
A newspaper reporter publishes a story that indicates a politician has filed an inaccurate federal tax return. In fact, the politician's return was accurate, but the sources with whom the reporter checked gave the reporter false information. Will the politician be likely to win a defamation suit against the newspaper reporter and the newspaper that published the story?
No- cannot prove actual malice by the newspaper because they thought it was true
Case Example 2.1:
Obama wrote to law enforcement in the federal government to regulate non commercial activities relating to medical marijuana that take place within state borders. More than half the states have adopted laws that legalize it for medical purposes. BUT it is illegal under the federal Controlled Substances Act. Congress has the authority to prohibit the intrastate possession and noncommercial cultivation of marijuana.
Case Example 1.4: Safety in the workplace - Legislative Rules
Occupational Safety and Health Act authorized the Occupational Safety and Health Administration to develop and issue rules governing safety in the workplace. OSHA wants to form rules regarding safety in the steel industry. If the agency fails to follow the rulemaking procedures the resulting rule may not be binding
Can be held liable for negligence when:
Once the defendant's duty of care toward the plaintiff is established, a defendant may be held liable for negligence if he breaches that duty of care and the consequence of his actions would have been "foreseeable" to a reasonable person
Administrative Law Judge
One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact. +ALJ can either fine the party or prohibit them from carrying out specific activities
Case Example 5.16: Opera - Wrongful Interference with a Contractual Relationship
Opera singer, Johanna Wagner was under contract to sing for a man named Lumley for a specified period of year. Man named Gye, who knew of this contract, enticed Wagner to refuse to carry out the agreement and Wagner began to sing for Gye. Gye's action constituted a tort because it wrongfully interfered with the contractual relationship between Wagner and Lumley.
Federal Agencies
Organizations that deal with and oversee the implementation of laws in a specific area of interest for the federal government. +exist within cabinet departments of executive branch +President can appoint and remove officers +Enabling Legislation: authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created +rules of law include interpretations of constitutional provision, statutes, and regulations
Does Federal Court have original or appellate jurisdiction in Garner vs. Foreman and Manager?
Original jurisdiction, because the case was initiated in that court and that is where the trial will take place. Courts having original jurisdiction are courts of the first instance, or trial courts—that is courts in which lawsuits begin and trials take place. In the federal court system, the district courts are the trial courts, so the federal district court has original jurisdiction.
Example of controversy with US constitution: Norman's Inc Case
Owners of Normans, a family owned pharmacy, have religious objections to selling Plan B. Washington state requires every pharmacy to stock assortments of drugs approved by FDA. Norman's believe the state rules violate their constitutional rights to freedom of religion.
Case Example 5.12: ATM Video - False Light
Police received a report from a customer of West Gate Bank that his credit card had been stolen and was used to withdraw funds at an ATM. ATM video showed a woman walking up and used a debit card to withdraw cash. To identify the person, police posted images from a video on Crime Stopper website and Facebook captioning "this woman doesn't look like a common crook but is and used someone's stolen credit card if you know who this is leave tip here." The police then received a tip that it was Shayla Funk. Funk was not a criminal and was withdrawing funds from her own account. As a result she lost her job so Funk sued the city and Crime Stopper for defamation and for violating her privacy by false light and won.
police powers
Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare. +Example: fire and building codes
In Class Example: At Six Flags and a man had a gun on his shirt.
Private entity: decide that they do not want any signs of violence so it didn't violate first amendment rights
The Defendant's Answer
Procedurally, a defendant response to the plaintiff's complaint +Defendant's written response to the Plaintiff's complaint. +Answer may include counterclaims by the Defendant against the Plaintiff
Case Example 5.17: Mall - Wrongful Interference with Business Relationship
Shopping mall contains two athletic shoe stores: Joe's and Ultimate Sports. Joe's cannot station an employee at the entrance of Ultimate Sports to divert customers by telling them that Joe's will beat Ultimate Sports prices. This is because it constitutes the tort of wrongful interference with a business relationship, unfair trade practices. Joe's would reap the benefits of Ultimate Sports advertising.
Cyber Courts and Proceedings
Some day, courts may allow for online proceedings.
Garner vs. Foreman and Manager
State Gardner resides in Illinois and promotes boxing matches for Super Sports, Inc an Illinois corporation. Garner created the concept of "Ages" promotion—a three-fight series of boxing matches pitting an older fighter (George Foreman) against a younger fighter, such as John Ruiz or Riddick Bowe. The concept included titles for each of the three fights ("Challenge of the Ages," "Battle of the Ages," and"Fight of the Ages"), as well as promotional epithets to characterize the two fighters ("the Foreman Factor"). Garner contacted George Foreman and his manager, who both reside in Texas, to sell the idea, and they arranged a meeting at Caesar's Palace in Las Vegas, Nevada. At some point in the negotiations, Foreman's manager signed a nondisclosure agreement prohibiting him from disclosing Garner's promotional concepts unless the parties signed a contract. Nevertheless, after negotiations between Garner and Foreman fell through, Foreman used Garner's "Battle of the Ages" concept to promote a subsequent fight. Garner filed suit against Foreman and his manager in a federal district court located in Illinois, alleging breach of contract.
Case Example 1.9: Workers Compensation - Substantive and Procedural Law
State law that provides employees with rights to workers compensation if hurt on the job is a substantive law because it creates legal rights. Procedural laws establish the method that an employee must notify their employer, prove injury, and provide periodic proof. Law can include both substantive and procedural provisions
pleadings
Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case.
Case Example 1.2: Immigration - Ordinances
Tension between federal, state, and local laws over sanctuary cities. Cities that limit their cooperation with federal immigration authorities. Typically law enforcement are supposed to detain individuals for deportation, but cities across the US have adopted local ordinances that don't follow this. Police in these cities either don't report who they come in contact with or do not detain them.
Case Example 2.6: Bong Hits 4 Jesus - Restricting Content of Speech
The US supreme court held that schools may restrict students' speech at school events. Some high school students held up a banner saying "Bong Hits 4 Jesus" at an off campus but school sanctioned event. Majority of the court ruled the school officials did not violate students' free speech rights when confiscating banners and suspended the student. Because the banner could reasonably be interpreted as promoting drugs and court ruled school actions were justified. +OUTCOME: Court upheld high school's confiscation of a banner and ten-day suspension of students after students held up a banner that said, "Bong Hits for Jesus" at a school sanctioned event that occurred off-campus. +JUSTIFICATION: In schools, education is deemed a compelling government interest.
right of publicity
The appropriation tort protecting a person's right to have their name, picture, likeness, voice and identity used for commercial or trade purposes only with permission and proper compensation. +Compensates plaintiff for injury of use of identity without fair compensation +Prevents unjust enrichment through misappropriation of the commercial value of identity
jurisdiction
The authority of a court to hear and decide a case +the court must have jurisdiction over the defendant (person/entity) or property involved in the case and the subject matter of the case
First Amendment
The constitutional amendment that establishes freedom of the press, of speech, of religion, and of assembly. (verbal and symbolic speech)
Constitutional Law
The government exercises its authority based on the interpretation of constitutions - federal and state. (basis of all law in the US, supreme law) +if a law violates a constitution, it is labeled as unconstitutional and is challenged and not enforced
Hear of Atlanta Motel v. US
The owner of the motel would not rent rooms to african americans +the motel was accessible from an interstate highway and had many out of state guests - the discrimination impeded on interstate commerce
Defenses for Conversion
The person who CLAIMS to be the true owner/rightful possessor is not
damages for slander
The plaintiff must prove special damages (actual economic loss).
complaint
The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit. +statement of jurisdiction, plaintiff's version of facts, plaintiff's request for a remedy
Administrative Process
The procedure used by administrative agencies in the administration of law.
commerce clause
The provision of the U.S. Constitution that gives Congress exclusive power over trade activities among the states and with foreign countries and Indian tribes. (HUGE IMPACT ON BUSINESS) +empowers the federal government
slander of title
The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner.
Slander of Quality (Trade Libel)
The publication of false information about another's product, alleging that it is not what its seller claims.
Remedy
The relief given to an innocent party to enforce a right or compensate for the violation of a right
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.
Case Law and Common Law Doctrines
The rules of law announced in court decisions (no publication of common law until the early 14th century)
publication requirement
The speaker must have communicated the statement to persons other than the defamed party. +a third party 'overhearing' the statement is usually counted as publication +republishing defamatory statements makes the party liable, even if they reveal the original source
Citizens United v. Federal Election
The supreme court overturned a 20 year model on campaign financing. The case involved Citizens United, a nonprofit corporation. Citizens United produced a film called Hillary, which was critical of Hillary Clinton who was seeking democratic presidential nomination. Campaign finance law prohibited them from broadcasting the movie but the court ruled the restrictions were unconstitutional and the first amendment prevents limits from being placed on independent political expenditures by corporations.
Issue of Arbitration
The terms of an arbitration agreement can limit the types of disputes that the parties agree to arbitrate. When one party files a lawsuit to compel arbitration, it is up to the court to resolve the issue of arbitrability
sliding scale standard
To determine when they can exercise personal jurisdiction over an out-of-state defendant based on the defendant's Web activities.
Jury Selection
Trial can be held with or without a jury +voir dire
Case Example 4.12: Profits - Mediation
Two business partners have a dispute over how profits of the firm should be distributed. If they litigate, the attorneys will treat them as adversaries, and emphasize how the parties positions differ, not what they have in common. If they mediate the dispute the mediator will emphasize the common ground of the two and help work toward an agreement. They can work out the the distribution of profits without damaging their continuing relationship as partners
Example: Slander of Quality
Two italian restaurants in town. One Italian restaurant owner claims the other restaurant only had 10 customers and all of them got food poisoning. In effect, no one goes to that restaurant. Could link profit losses to case. If personal reputation was linked to the restaurant then could sue for personal defamation if his reputation as a person was hurt.
petitions granted by the court
Typically courts grant petitions when cases raise important constitutional questions OR when lower courts are issuing conflicting decisions a significant issue
Appropriation of Identity
Using a person's name, picture, or other likeness for commercial purposes (their own benefit) without permission.
Case Example 5.7: Fact v. Opinion
Vickies statement: "Lane cheats on his taxes". If it is false can lead to liability of defamation because it is a statement of fact. The statement "Lane is a jerk" cannot constitute defamation because it is clearly an opinion
In Class Example: Libel
While a female patient is under anesthesia, a nurse draws a mustache and whiskers on the patient's face, snaps a photo, and e-mails the photo to friends. +The patient may sue the nurse for libel
Case Example 5.1: Injury - Damages
While working as a seaman in Louisiana Stark was injured by a piece of equipment that broke free. After several surgeries Stark sued his employer for past and future medical expenses, and pain and suffering. At trial a jury awarded him damages past and future medical expenses and past pain and suffering but did not award him damages for future pain and suffering. Stark appealed claiming the damages awarded were inadequate and provided proof that his injuries and future medical treatment will cause him future pain and suffering.
Question: Carol, owner of a land development corporation, has just learned that the office of environmental protection is considering adopting more stringent testing measures to verify the presence or absence of protected species on undeveloped land. Will carol have an opportunity to view the proposed regulations and voice an opinion prior to official adoption of the regulations?
Yes
The baseball hits Jarrod and breaks Jarrod's nose. Also, unknown to Fran, Jarrod has a rare genetic condition that causes Jarrod to immediately go into cardiac arrest when he is startled. Jarrod's heart stops, and Jarrod ultimately requires 3 months of hospital care. Could Fran be held liable for all of Jarrod's hospital bills related to the cardiac arrest?
Yes
Prince Charming kissed Sleeping Beauty while she was asleep. Sleeping Beauty has never met Prince Charming. When Sleeping Beauty awakes and is told about the kiss, she is upset. Could Prince Charming be held liable for battery?
Yes - acted intentional to have harmful contact
Ann blows up a bomb in a crowded street. Mary and Bill are injured. Ann did not know either of them, and did not specifically intend to target them. Consider the legal definition of intent; did Ann intentionally injure Mary and Bill?
Yes - any rational person would know with substantial certainty that they would be harmed
Fran sees Jarrod studying in the library. Trying to be funny, Fran throws a baseball at Jarrod's book from across the room. Fran misses Jarrod's book and hits Jarrod in the face. Could Fran be held liable for battery?
Yes - didn't mean to hurt him but intended to throw baseball → transferred intent
An office assistant playfully elbows his coworker in the stomach. The coworker had hernia surgery yesterday, and the elbow causes extreme pain. Has the office assistant committed a battery?
Yes - intended to elbow him
Common Law
a body of legal rules that have been made by judges as they issue rulings on cases (as opposed to rules and laws made by the legislature or in official statutes). +Example: rule made by a judge that states that people have the duty to read contracts
Strict Liability (liability without fault)
a defendant will be liable no matter what steps the defendant took to meet his "duty of care" if he or she engages in a certain type of activity with incredible risk of harm and someone is injured - as long as the defendant's act was the proximate cause of the harm
default judgement
a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim
summons
a notice directing someone to appear in court to answer a complaint or a charge
Motion
a procedural request submitted to the court by an attorney on behalf of her or his client
Tort
a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability. +Through tort law society compensates those who have suffered injuries under wrongful acts of others +interest in protecting property, privacy, business transactions, dignity, family relations, and reputation +Two notions serve as basics of all torts: wrongs and compensation
False/defamatory statements about public figures in media won't constitute defamation unless statements are made with:
actual malice +public figures have a greater burden of proof than private individuals +have access to public mediums for answering falsehoods
Appellate Review
after a trial/hearing, the appeal to the next level of court where the court will review the record of what happened at the lower level. The court will not conduct a trial nor receive new evidence or testimony
personal property
all other items that are not land/permanent attachments to land +furniture, car
standing to sue
an individual must have a sufficient stake in a controversy before they can bring a lawsuit to court +must have suffered harm or have been threatened by harm +requires a justiciable controversy
Fraudulent Misrepresentation
any misrepresentation knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment
Binding Authority
any source of law that a court must follow when deciding a case +Includes: constitutions, statutes, regulations, and court decisions
specific torts
assault, battery, false imprisonment, intentional infliction of emotional distress
a defendant is liable for Intentional infliction of emotional distress if he:
by extreme or outrageous conduct, intentionally or recklessly, causes severe emotional distress to another
actionable
capable of serving as the basis of a lawsuit
Negligence
careless neglect, often resulting in injury
No Precedent
case of first impression +courts use persuasive authorities
Remedies for "action at law"
compensates individuals for actual damage in payment or property
method of service
corporate defendants can be served by delivering process +Anyone over the age of 18 and not a party to the lawsuit can serve in a federal court case
Businesspersons need...
critical thinking/legal reasoning skills to determine the best courses of action (pressured to make ethical decisions)
metadata
data that is automatically recorded by electronic devices and provides information about who created a file and when, and who accessed, modified, or transmitted the file. It can be described as data about data
result of Gibbons v. Odgen
expanded the power of the government to not only regulate commerce between states, but also within a state as well (POWER TO REGULATE ANY ACTIVITY THAT "SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE") +later on, the decision was made that Congress has POWER TO REGULATE ANY ACTIVITY THAT affects interstate commerce
Example of strict liability
explosives, domesticated animals deemed dangerous, wild animals, product liability(liability imposed on manufacturers and sellers of harmful or defective products), drunk driving, speeding
obscene speech
expressions deemed harmful to a community +not protected +crime to spread/possess child pornography +controversial because what one might find obscene, others may not
defamatory speech
false speech that damages a person's good name
Service of Process
formally notifying the defendant of a lawsuit
actual malice
knowledge of falsity or reckless disregard for the truth
real property
land and things permanently attached to the land +house, land around house
To satisfy the damages in the tort of negligence, the plaintiff must suffer a:
legally recognizable injury
Unprotected Speech
libel, obscenity, and fighting words, which are not entitled to constitutional protection in all circumstances
trial courts of limited jurisdiction
local municipal courts and domestic relations court +Small Claims Court: a Special court in which parties can litigate small claims with an attorney -Court only hear cases under a certain amount; for example $5,000
Superseding Intervening (S/I) Defense
may not hold a defendant liable for an injury where an unforeseeable intervening event breaks the connection between wrongful act and injury
superseding
must be too extraordinary or improbable such that it is not a "foreseeable" consequence of defendant's original act
At the Trial
opening arguments, examination of witnesses, closing arguments, decision, awards
motion to dismiss
pleading in which a defendant admits the facts as alleged by the plaintiff, but asserts that the plaintiff's claim to state a cause of action has no basis in law
singular damage
refer to harm to persons or property
plural damage
refer to monetary compensation for such harm
Ordinances
regulations passed by municipal or county governing units to deal with matters not covered by federal or state law +Examples: zoning ordinances, building and safety codes
Dormant Commerce Clause
restriction on states' authority to pass laws that substantially affect interstate commerce
4 types of slander per se
saying that one: -has a loathsome disease or serious mental defect -committed business, professional, or trade impropriety -has been imprisoned for a serious crime -is "unchaste" or has engaged in serious sexual misconduct
minimum contacts corporations
sufficient to establish personal jurisdiction over a corporation when -it is incorporated in, OR -has its principal place of business (office) in, OR -does business within the state
filing the appeal
the appealing party files a notice of appeal with the clerk of the trial court
long arm statutes
the court can exercise jurisdiction over out-of-state defendants if they had sufficient minimum contacts to warrant it
US District Courts
the courts where most federal cases begin, the U.S. District Courts are courts of original jurisdiction and hear civil and criminal cases (at least 1 in every state)
Case Law
the doctrines and principles announced in cases, governs all areas not covered by statutory law or administrative law and is part of our common law tradition
highest state court
the highest court in a state court system; it hears appeals from intermediate appellate state courts and certain trial courts (usually called the supreme court, sometimes 'court of appeals') +judges are either governor appointed or elected in a state court election
False Imprisonment
the intentional confinement or restraint of another person's activities without justification
Federal form of government
the national government and the states share sovereign power
Duty of Care
the obligation people owe each other not to cause any unreasonable harm or risk of harm
plaintiff
the party who initiates a lawsuit by filing a complaint in court (who was injured)
defendant
the party whom a plaintiff has filed a lawsuit (person being sued) +in a criminal action, the defendant is the person accused of a crime
The right to privacy protects
the right to be left alone
Negotiation
two parties try and hash out issue with no attorney
transferred intent
when a defendant intends to harm one individual, but unintentionally harms a second person
tort of defamation
when false statement is made about persons product, business, or legal ownership of property rights
assault
word or action INTEND to make another fearful or physical harm 1.Defendant's act (physical or verbal) INTENTIONALLY 2.causes APPREHENSION of 3.IMMEDIATE HARMFUL OR OFFENSIVE contact +An assault can happen even if there is no actual contact with plaintiff +Need fear of harmful contact not contact
United States rules consist of...
written laws and court decisions created by modern legislative and judicial bodies
Interrogatories
written questions between plaintiff and defendant +can prepare answers with the aid of an attorney +Written then sent to opposite party then opposite party uses written answers with attorney
intentional torts against property
wrongful actions that interfere with individuals' legally recognized rights with regard to their land and personal property +trespass to land, trespass to personal property, conversion, disparagement of property
Business torts
wrongful interference with another's business rights and relationships
conversion
wrongfully taking individuals personal property and putting it in service of another +more serious interference because it usually includes trespass as well
Paul and Mary are having an argument. Paul is standing under mary's 2nd floor window. If Mary threatens to throw a water balloon at Paul, has Mary committed an assault?
yes - she has cause Paul to be apprehensive and feel threatened
Example of defense to trespass to personal property:
you steal someones phone to call the police