LS 246- Test 2

court summons to appear and give oral testimony for use at a hearing or trial.

ad testificandum

Law requires who to be unbiased?

adjudicator

serves as both the judge and jury in a hearing

administrative law judge

all federal agencies must follow

administrative procedure act

special damages: ____________ such as lost wages, medical bills, repair or replace property.

all direct and specific expenses

executive, legislative, and judicial do what?

provides checks and balances

defendant's act created a foreseeable risk of injury to plaintiff

proximate cause

- adequate notice of meetings must be given to the public. - closed meetings are authorized in a limited number of instances.

public accountability

the legislation requires that "every portion of every meeting of an agency" be open to "_______________"

public observation

third party must hear or see statement. an individual who republishes the statement may be liable.

publication requirement

damages that are generally awarded only in intentional torts

punitive

punish wrongdoer, typically only available in intentional torts.

punitive damages

duty is based on ______________ person standard

reasonable

If the statute is silent or ambiguous, is the agency's interpretation "___________"?

reasonable (New chevron standard of review)

concern over the effects of regulation on the efficiency of businesses, congress passed the _____________________________ which requires an analysis of the cost a regulation will impose on small business and must consider less burdensome alternatives.

regulatory flexibility act

Resolution of dispute through a hearing with the agency - ____________ hears when agency charges party with violation.

(Adjudication) administrative law judge

Hearing procedures vary - like trial.

process of formal administrative adjudication

economically injurious falsehoods made about another's property or product.

disparagement

requires the witness to produce a document or documents pertinent to a proceeding.

duces tecum

Notice of Proposed Rule-making involves 3 steps

-notice of the proposed rule making -comment period -final rule published in the federal register; no radical changes, then CFR.

1. party who brings suit in civil law 2. wrongful act 3. burden of proof 4. verdict 5. remedy

1. person who suffered harm 2. causing harm to a person or to a person's property 3. preponderance of the evidence 4. 3/4 majority 5. damages to compensate for the harm or a decree to achieve an equitable result.

1. party who brings suit in criminal 2. wrongful act 3. burden of proof 4. verdict 5. remedy

1. state 2. violation a statute that prohibits some type of activity 3. beyond a reasonable doubt 4. unanimous 5. punishment

did defendant owe plaintiff a legal ______ of care?

duty

warn business invitees of risks, and keep common areas safe.

duty of landowners

-formulation of new regulation

APA rule-making

______ and ________ or o/w not in acc'nce w/ law

Arbitrary and Capricious

congress can create agencies and delegate to them the power to create rules to implement laws.

Delegation doctrine

What happened if there wasn't a settlement?

Formal complaints

the power to: conduct inspections and tests, issue subpoenas, ad testificandum, duces cecum, and abuses in investigation, and search warrants.

Investigation

deciding meaning of law, how to apply them, and whether it breaks the rules of constitution.

Judicial control

gives and takes away power, fund, or freeze registration

Legislative control

What was common?

Negotiated settlements

merchants can detain a suspected shoplifter - but check local laws.

privilege to detain

the intentional and unexcused threat, of immediate harmful contact causing, reasonable apprehension or fear of immediate contact - no contact required.

assault

to provide legal remedies - to compensate - for invasion of protected legal interest.

basis of tort law

completion (contact) of the assault. unexcused, harmful or offensive, intentional touching of another - an unwelcome kiss, physical injury unnecessary.

battery

what do courts apply strict liability to?

blasting, dangerous animals, and product liability

a criminal and a wrongful state of mind

both elements must exist simultaneously for a person to be convicted of a criminal act.

did defendant _____ that duty?

breach

did defendant's breach of duty ________ plaintiff's injury?

causation

to hold defendant liable, plaintiff must prove the tortious act was both the actual and proximate cause of the injury.

causation

"but for" defendant's act, injury would not have occurred.

causation in fact

usually preponderance of the evidence. verdict typically is by a majority.

civil

-intentional -unintentional -strict liability

classification of torts

Negligence (more common, used to be bar if over x%): compare negligence of P and D and Plaintiff can recover a pro-rata share of the verdict.

comparative

damages that are normal

compensatory

actual losses. puts plaintiff in position he would have been in if tort had not occurred.

compensatory damages

The Mayo Foundation for Medical Education and Research v. United States case (2011) what was the courts holding?

congress didn't define, rule reasonable interpretation.

law assumes that individuals intend the normal _________ of their actions.

consequences

_____________ negligence (few jurisdictions, complete bar)

contributory

-wrongfully possessing or disposing of chattel -usually occurs with trespass to personal property -extended to credit cards

conversion

wrong against society proclaimed in a statute and punishable by society through fines, imprisonment or death

crime

proof beyond a reasonable doubt. verdict must be unanimous.

criminal

a wrongful mind state is required

criminal liability

did plaintiff suffer a legal ________?

damage

the publication of a false statement that inures a person's good reputation.

defamation

truth is normal an absolute defense. statement was privileged.

defamation defenses.

was warranted or had a license

defense for trespassing

When courts will give chevron _______ to agency interpretation.

deference

Did congress _________ address the issue in dispute? If so the statutory language prevails.

directly (new chevron standard of review)

congress creates federal admin agencies by enacting ________ ________. statute that specifies the name, purposes, functions, and powers of administrative agency.

enabling legislation

enforces laws. senate must approve treaties

executive

able to veto, or reject, a proposal for a law; and appoint federal posts.

executive control

intentional confinement or restraint o another person's activities without justification.

false imprisonment

shoyoye v county of Los Angeles (2012) wrongfully imprisoned man - clerical error - gets damages.

false imprisonment

decision on appeal

final

intentional deception of another that causes belief in a condition that is different from the condition that actually exists.

fraudulent misrepresentation

requires knowing; - material of fact - intent to induce innocent party to reply- justifiable reliance by innocent party - causation and damages

fraudulent misrepresentation

requires federal gov't to disclose certain records to any person on request, even if no reason is given for the request.

freedom of information act

non monetary aspects of harm such as pain and suffering.

genera damages

so extreme and outrageous exceeds bounds of decency. stalking = yes / annoyance = no

infliction of emotional distress

no appeal

initial

-plaintiff must suffer a legally recognizable injury - plaintiff must show she suffered loss or harm to legally protected interest - no harm, no foul

injury requirement and damages

an intention tort requires?

intent

courts should defer to agencies in matters of fact and __________

interpretation of law

intrusion into private affairs or seclusion. publication of info that places person in false light. public disclosure of private facts not legit public concern. appropriation of identity

invasion of the right to privacy

declares laws/actions unconstitutional. fed judges apptd by president with senate approval.

judicial

enacts laws, determines jurisdiction of federal courts. but presidents vetos.

legislative

written defamation

libel

damages are presumed as a matter of law. plaintiff need not prove she was actually injured. which is why it's permanent and continues to harm after statement is made.

libel general damages

occurs when plaintiff is legally injured due to defendants failure to live up to a reasonable standard of care causing foreseeable risk or injury.

negligence

in order for agencies to be assured chevron deference they must meet formal legal standards for ___________ rule making.

notice and comment

a tort action is a ____________ ____________ legal action to obtain monetary damages from a legal injury to a person or property.

private civil

oral defamation

slander

plaintiff must prove special damages - statement actually caused monetary loss. reason is because it's temporary.

slander damages.

false statement about another's product that caused a third party to refrain from dealing with plaintiff, causing financial loss.

slander of quality

false statement about legal ownership of another's product resulting in financial loss. (car dealer sells stolen cars, you don't own your house)

slander of title

This act allows congress to review new federal regulations for at least 60 days before they can take effect. also authorizes courts to enforce RFA

small business regulatory enforcement fairness act

the federal constitution was a political compromise between advocates of state _______ and central government.

sovereignty

liability without fault

strict liability

- we decided manufacturer or seller can better bear cost or injury - manufacturer is making profit and so should bear costs of injuries

strict liability in produc liability

breaks connection between wrongful act and injury - event must be unforeseeable.

superseding cause

-failed to provide a rational explanation for its decision -changed its prior policy without justification -considered legally inappropriate factors -entirely failed to consider a relevant factor

test for arbitrary and capricious

states' police powers "reserved" powers of 10th amend

the constitutional powers of government

a civil wrong not arising from breach of contract

tort

a _________ must have intended the act or knew the consequences of his act would interfere with the legal interests of another.

tortfeasor

I meant to hit bob, but I hit you instead would be ?

transferred intent

-actual damages or harm to the property is not required to prove. -attracts nuisance

trespass to land

occurs when a person, without permission, enters physically above or below someone else's land; or causes anything to enter on the land; permits anything to remain on the land.

trespass to land

wrongfully taking, harming, or interfering with exclusive right of use of personal property of another.

trespass to personal property