LA245 Midterm

Money Damages

"Compensatory"--compensates the plaintiff for actual losses Special--compensates for medical bills, lost wages, etc. Emotional distress, pain, suffering Punitive--punishes the wrongdoer because of "willfulness" or "gross misconduct"

Elements of a Crime

1. A crime has occurred (aka "Actus Reus"--the guilty act) 2. The defendant intended to commit the crime (aka "Mens Rea") 3. Timely relationship between element 1 and 2 (concurrence) 4. Criminal harm and causation (relationship between the conduct and the harm)

Phases of Arbitration

1. Commencing the Arbitration 2. Discovery 3. Hearing 4. Award

Four Elements of Intentional Tort

1. Defamatory Statement: factual statement likely to harm another's reputation (fact, not opinion) 2. Falsity: a false statement 3. Communicated: to at least one person other than the plaintiff 4. Injury: to the reputation of the person being defamed

Element of Negligence

1. Duty of care 2. Breach of duty 3. Causation--Factual cause: breach caused the injury 4. Proximate Cause--foreseeable that the breach might cause this type of harm 5. Damages--measurable harm

Phases of a Trial

1. Jury Selection 2. Opening Statements 3. Plaintiff's Case 4. Defendant's Case 5. Closing Arguments 6. Jury Instructions

Aspects of Due Process ("Fundamental Fairness")

1. Must provide notice of the charges against you. 2. Show that there is a standard of conduct which you are accused of violating. 3. Opportunity to rebut (claim or prove false) the charges against you (the "hearing requirement") 4. Government must establish--at a minimum--that there is substantial and credible evidence supporting its charges. 5. Some explanation to the individual for the basis of any adverse finding.

Categories of speech NOT protected by the First Amendment

1. Obscenity 2. Fighting words 3. Defamation (libel/slander) 4. Child pornography 5. Perjury 6. Blackmail 7. True threats 8. Soliciaations to commit crimes 9. Incitement to imminent lawless action

Limitations on the Government's Rights

1. The Takings Clause 2. Procedural Due Process 3. Substantive Due Process

Privacy Act

1974 statute prohibiting federal agencies from giving information about an individual to other agencies without written consent

Constitutional Law

A body of law that deals with interpretation and implementation, as well as fundamental relationships

Personal Jurisdiction

A court's authority to bind the defendant to its decisions

Subject Matter Jurisdiction

A court's authority to hear a particular kind of case Default is state court Federal courts are established by the U.S. Constitution, which limits what kind of cases can be brought in any federal court

Breach of Duty

A defendant breaches his duty of care by failing to behave the way a reasonable person would under similar circumstances

Voluntary Act

A defendant is not guilty if they were forced to commit it (i.e. under duress)

Cause of Action

A group of facts upon which a claim or judicial relief can be made The legal theory upon which a plaintiff brings a lawsuit against a defendant

Grand Jury

A group of ordinary citizens who decide whether there is probable cause the defendant committed the crime with which he or she is charged

Common Law

A judge-made law that involves judicial rulings where precedent is binding only on lower courts Stare decisis--"Let the decision stand"

Statutes

A law created by the legislature

Misdemeanor

A less serious crime for which the defendant can be sentence to less than one year in county jail Examples: public drunkenness, shoplifting, driving without a license

Arbitration

A method of dispute resolution in which the parties agree to submit their dispute to an appointed arbitrator or a panel of three arbitrators instead of going to court An alternative to litigation

Assumption of Risk

A person who voluntarily enters a situation that has an obvious danger cannot complain she is injured. If there is a finding of assumption of risk, the plaintiff usually recovers nothing.

Discovery

A phase in the litigation process during which the opposing parties may uncover evidence, encouraging a settlement without trial or ensuring few surprises during a trial

Comparative Negligence

A plaintiff may generally recover even if she is partially responsible for the accident. Recovery for the plaintiff is reduced by the level of negligence attributable to her.

Bill

A proposed statute submitted to Congress or a state legislature based on a societal need to regulate civil or criminal behavior Considered in committees

Felony

A serious crime for which the defendant can be sentenced to a year or more in prison Examples: murder, robbery, rape, drug dealing, money laundering, embezzlement, securities fraud

Law

A system of rules that are enforced through social institutions to govern behavior

Bench Trial

A trial where the judge ins the fact finder and decides the case in lieu of a jury

Union organizers at a hospital wanted to distribute leaflets to potential union members, but hospital rules prohibited leafleting in areas of patient care, hallways, cafeterias, and any areas open to the public. The National Labor Relations Board (NLRB), a government agency, ruled that these restrictions violated the law and ordered the hospital to permit the activities in the cafeteria and coffee shop. What kind of law was it creating?

Administrative Regulation

Types of Dispute Resolution

Alternative Dispute Resolution (out of courts) Negotiation Mediation Arbitration

Assault

An act that makes a person reasonably fear (i.e. victim is subjectively aware) of an imminent battery Causing reasonable apprehension of an immediate harmful or offensive contact

Administrative Law Judge

An agency employee who acts as an impartial decision maker

Intentional Tort

An intention to perform an act that causes harm to someone

Interstate Commerce

Any commercial transaction or traffic that crosses state boundaries or that involves more than one state

Key Presidential Powers

Appointment--administrative agencies heads, judges Legislation--President and advisors can propose bills to Congress; veto authority Foreign Policy--conducts foreign affairs; coordinates international efforts

Judicial Power

Article 3 of the Constitution creates the Supreme Court and permits Congress to establish lower courts within the federal court system

The FDA regulates the distribution of Gensol. As a federal executive agency, it has rules about the off-label marketing of drugs. If Pharzime was to be accused of violating one of the FDA rules, Pharzime's first formal hearing would be: A.in a Federal District Court. B. in front of an administrative law judge. C. in a Federal Circuit Court of Appeal. D. In the Federal Court of Administrative Actions.

B. In front of an administrative law judge

Tina wishes to learn what records the IRS has about her. Under the Freedom of Information Act (FOIA): A. Tina can only obtain copies of declassified information. B. Tina is entitled to all information the IRS has about her. C. Tina can only obtain information about the IRS, not records concerning herself. D. Tina cannot obtain any information since the IRS is exempt from the FOIA.

B. Tina is entitles to all information the IRS has about her.

Civil Law

Based on common law and statue Regulates rights and duties between parties Private parties sue to enforce rights/duties Remedies--monetary judgement, injunction

Criminal Law

Based on statues Government prosecutes--decision is independent of the victim; district brings case to court Punishment--prison sentence, fine, or both

Process of Statues

Bill proposed in Congress House and Senate each independently vote on it If approved by majority of both, sent to the White House

The Food and Drug Administration (FDA) regulates the distribution of Gensol. The FDA is a federal executive agency. It has rules about off-label marketing of drugs. If Pharzime wants to challenge FDA rules about off-label marketing, it would have to show that the rule is: A. Random and specious. B. unfair. C. Arbitrary and capricious. D. Baseless and erroneous.

C. Arbitrary and capricious

If Pharzime was to be accused of violating one of the FDA rules, which of the following is true? A. Pharzime could opt-out of a hearing before the FDA and have the case heard in a Federal District Court. B. Pharzime could never have the case in the federal court system, since federal courts have no jurisdiction over administrative matters. C. Pharzime could only have the case in the federal court system after it exhausted all of the administrative remedies available to it. D. Pharzime could opt-out of a hearing before the FDA and have the case heard in a Federal Circuit Court of Appeal.

C. Pharzime could only have the case in the federal court system after it exhausted all of the administrative remedies available to it.

Ad hoc/Non-administered Arbitration

Conducted under the parties' chosen rules but without the involvement of an arbitral institution

Substantial Effects Test

Congress may regulate any activity that has a substantial economic effect on interstate commerce

The year is 1964. Ollie's BBQ is a family-owned restaurant on a state highway in Georgia, 11 blocks from an interstate highway. The restaurant does not allow African-Americans to eat inside; they must get takeout. According to Title II of the Civil Rights Act of 1964, the federal government has the right to prohibit racial discrimination in hotels, restaurants, and other public facilities because local activities have a substantial effect on interstate commerce. The owner of Ollie's BBQ argues that his business is local and has no impact on interstate commerce. Whose argument will win?

Congress's solution to the problem was appropriate and within its bounds to regulate interstate state commerce. Katzenbach v. McClung, 375 U.S. 294 (1964). The U.S. Supreme Court ruled that discrimination in restaurants posed significant burdens on "the interstate flow of food and upon the movement on products generally," and further imposed restriction on African-Americans who traveled from state to state.

The Environmental Protection Agency was investigating whether Exgrow, Inc. violated the Clean Air Act. Exgrowrefused to give the EPA its computerized reports concerning pollution. To get the reports, the EPA should use a(n): A. Stare Decisis B. De Novo C. Excaliber D. Subpoena Duces Tecum

D. Subpoena Duces Tecum

Duty of Due Care

Each of us has a duty to behave as a reasonable person would under the circumstances. Limited to foreseeable types of events.

Requests for Admission

Each side may request that undisputed facts be admitted or denied, to avoid wasting time on them

Requests for Production

Each side may request to see the other side's documents and evidence

Procedural Law

Establishes procedures or the process to be followed in resolving a legal dispute

A University expels a student for violating a school contract and code of conduct rules. Process Due = The right to a trial in court. True or False?

False

The 14th Amendment requires that all levels of government treat people identically. True or False?

False

Criminal law is a combination of common law and statutory law. True or False?

False. Crimes are written in statues or ordinances.

In a civil case the losing party is deemed guilty or not liable. These terms can be used interchangeably in the civil context. True or False?

False. In civil cases, the defendant is either liable or not liable.

While at the park, Tasha saw a small child fall into the lake. Tasha did not know the child. Under the common law of most states, Tasha has a legal duty to take reasonable steps to assist the child if Tasha is able to help and such help will not jeopardize Tasha's well-being. True or false?

False. Tasha did not have a special relationship with the child. Hint: "under most states' common law...Tasha has a legal duty" usually means it is false

Adjudicating Cases

Federal court system hears criminal and civil cases; a key function of federal courts

Equitable Relief

Forces the losing party to do something or stop doing something Used where money is not going to help the situation (i.e. patent or trademark situation; domestic abuse situation)

4th Amendment

Government cannot search or take person or property without probable cause Exceptions include consent, warrant upon reliable information, search incident to arrest, exigent circumstances

Strict Scrutiny

Government regulation must be narrowly tailored to be the least restrictive means of accomplishing a compelling government interest; otherwise, it is void. Political speech Race

Intermediate Scrutiny

Government regulation must be substantially related to an important government objective Gender

Rational Basis Test

Government rule has to be rationally related to legitimate government interest Income level Commercial speech

Absolute Privilege Against Defamation

Governmental Official performing duty Members of Congress Judicial Proceedings (though could be considered a crime of perjury)

Insanity

If an individual cannot know what is right or wrong, they cannot develop mens rea as a matter of law

Entrapment

If the government induces the defendant to break the law, they must prove that the defendant was predisposed to commit the crime

Contributory Negligence

If the plaintiff is even slightly negligent, she recovers nothing

Fraud

Injuring another person by deliberate deception

Punitive Damages

Intended to punish the defendant Relatively rare and often reduced by the judge after headline

Element of Intentional Infliction of Emotional Distress (IIED)

Intentional or reckless conduct That is extreme and outrageous and Causes serious emotional harm

Battery

Intentional touching of another person in a way that is unwanted or offensive Causing injury (physical or emotional)

Depositions

Interviews of other party or potential witnesses; done by opposing lawyer, under oath

Substantive Law

Involves the actual content of the law; how the facts in a case will be treated and/or outlines how society should behave In civil law--defines the rights and responsibilities of parties In criminal law--defines crimes and punishments

Subpeona

Issued by an agency: Order to appear at a hearing or to produce information or documents Must be relevant, not unreasonably burdensome, not privileged

Freedom of Information Act

Keeps agencies in check (does not apply to White House, Congress or Courts)

Benefits of Bench Trial

Less time consuming Less complex Chosen by defendant in cases with complex legal issues; judge might understand nuanced legal issues better than a jury Jurors may have inherent bias

Appeal Adjudication

Losing party may appeal to agency appellate board Appellate board ruled de novo Appeal from there to Federal Court

Compensatory Damages

Money intended to restore a plaintiff to the position he was in before the injury Most common form of damages in tort

Adjudication

Most adjurations begin with a hearing before an Administrative Law Judge (ALJ)

Formal Rulemaking

Must hold a public hearing before establishing the rule

Reasons Bills are Proposed

New issue/worry Unpopular judicial ruling New crime

Common Law Rule Regarding Bystanders

No duty to assist someone in peril unless you created the danger

8th Amendment

No excessive bail and no cruel or unusual punishment

Congress passes a law making bullying on school playgrounds a federal offense. Is this constitutional?

No. Education is not economic activity, and neither is bullying.

Congress enacts a statute that says: "The Attorney General may promulgate rules requiring sex offenders to register. These rules can be retroactively applied, if the Attorney General so chooses." The Attorney General issues a rule stating that everyone convicted of a sex offense must register. The FBI arrests a sex offender convicted 5 years ago and charges them with a failure to register. Is this permissible?

No. The rule wasn't enacted during the time the sex offender was convicted.

Good Samaritan Law

Offers a liability shield; statutory law Three general categories: 1. Medical personnel 2. Duty to rescue without endangering yourself 3. Duty to report

Physical or Mental Exam

One party may request the court to order an examination of the other party if relevant

The Reasonable Person

Pays attention to his situation and to risks that he faces under the circumstances Is aware of obvious risks that we would expect someone to recognize, identify or notice Takes greater care if there are more serious risks

Judicial Review

Power of federal courts to declare a statute or governmental action unconstitutional and void; a key function of federal courts

Informal Rulemaking

Proposed rule must be published and public allowed to comment

A person criticizes the U.S. President on a blog site about public policy. Protected or unprotected speech?

Protected

For an art assignment, a student depicts cutting his art teacher's head off. Protected or unprotected speech?

Protected

Procedural Due Process

Refers to the method or manner by which the law is enforced It is a procedure "which hears before it condemns"

Motion for Summary Judgement

Request that the judge terminate the case because there are no material facts in dispute and one party is entitled to judgement as a matter of law

Motion to Dismiss

Request to terminate the case because the plaintiff's claim fails either on procedural or substantive grounds

Subpoena Duces Tecum

Requires a person to produce certain documents or things Surprise inspections (where scope of regulatory authority permits it)

Substantive Due Process

Requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just

5th Amendment

Right not to self-incriminate with respect to potential criminal activity Federal government cannot deprive of life, liberty or property without due process Cannot be tried twice for the same crime

6th Amendment

Right to counsel, a speedy, public trial, impartial jurors, and confront witnesses against you

Power of Agencies

Rulemaking Investigation Adjudication

Administrative Law

Rules promulgated by administrative agencies--must be authorized by statute or within enumerated powers of the agencies

Anita lives in Tennessee. She wants to sue Rebecca, who lives in Ohio. Anita claims that Rebecca agreed to sell her 3,000 acres of farmland in Ohio, worth more than $2 million. State or Federal jurisdiction?

State and Federal jurisdiction. Federal jurisdiction under diversity jurisdiction.

Chris, incarcerated in a federal prison in Kansas, wants to sue the U.S. government. He claims that his treatment by prison authorities violates three federal statutes. State or Federal jurisdiction?

State and Federal jurisdiction. Federal jurisdiction under federal question jurisdiction.

Pat wants to sue his next-door neighbor, Dorothy, claiming that Dorothy promised to sell him the house next door. State or Federal jurisdiction?

State jurisdiction

Paula, who lives in New York City, wants to sue Dizzy Movie Theaters, whose principal place of business is Dallas. She claims that while she was in Texas on holiday, she was injured by their negligent maintenance of a stairway. She claims damages of $30,000. State or Federal jurisdiction?

State jurisdiction. She was out of state but there is only $30,000 in controversy

Limits on Agency Power

Statutory control Political control Judicial review Informational control

•Bob and Susan meet at a church pancake breakfast and chat about Bob's Ferrari. •They sign an agreement that Susan can buy the car for the low price of $30,000. •Bob refuses to honor the agreement, claiming he was intoxicated when he signed. •Susan has 35 witnesses who swear that Bob was sober. •Bob has only himself testifying that he was drunk. •Susan moves for Summary Judgment. Should Summary Judgement be granted to Susan?

Summary judgement is denied because the parties have a key factual dispute--whether Bob was intoxicated or not.

Diversity Jurisdiction

The case involves parties that reside in different states and there is more than $75,000 in controversy

Federal Question Jurisdiction

The case is about an issue of federal Federal jurisdiction is an option

Institutional/Administered Arbitration

The parties' selected institution administers the arbitration

Jurisdiction

The power of a court to hear a case

Imminent Lawless Action

The words used in such circumstances and in such a nature as to create a clear and present danger that will lead to lawless activity Imminent disorder

Commerce

To trade or exchange vs. broader social and commercial purpose

A party challenging an administrative rule must "exhaust its administrative remedies before seeking judicial review." True or false?

True

Congress passed a law imposing penalties for displaying "indecent" material online where children could see it. If the U.S. Supreme Court subsequently rules that the statute conflicts with the First Amendment of the U.S. Constitution, the statute is void. True or False?

True

The government charges Ms. L with a crime and seeks to have her imprisoned for life. Process Due = The right to counsel, the right to trial in court. True or False?

True

The government wants to take your house to build a highway that connects with the PA Turnpike. Process Due = The right to a pre-deprivation hearing. True or False?

True

Primary Sources of Law

U.S. Constitution Statutes Administrative Law Common Law

A company's advertisement claims to cure cancer if people take 3 pills a day. Protected or unprotected speech?

Unprotected

A person creates a pro-terrorist website that asks people to join terror groups in overthrowing the U.S. government. Protected or unprotected speech?

Unprotected

A person in a corroded theater alley yells fire and hundreds of people are injured. Protected or unprotected speech?

Unprotected

Interstate commercial activities include:

Use of channels Instrumentalities (or infrastructure), persons or things in commerce Economic activity that substantially affects interstate commerce

Elements of False Imprisonment

Victim must be aware of the confinement or be harmed by it Elements: Intentional restraint Of another person Without reasonable cause Without consent

Per Se Libel and Slander

Where the court is willing to assume injury (without the plaintiff having to prove it) Concerns false statements about sexual behavior, crimes, contagious diseases, and professional abilities

Interrogatories

Written questions that the other party must answer, under oath

The Food and Drug Administration ("FDA") issues regulations defining what constitutes organic food. Is this constitutional?

Yes. Food moves in interstate commerce and regulating its quality is within the federal government's power.