LEB 3
Samsung believes that Apple has infringed upon its patents. Prior to filing a lawsuit for patent infringement, Samsung and Apple can engage in (1)__________ in order to save time and business relations. If this method does not work, or the two companies decide not to do this, Samsung will have to file a (2)__________ with the court in order to begin their lawsuit. The two parties decide to not petition for a jury trial. After the trial, the judge will consider (3)___________ and ___________ when deciding how to rule on the case. Which answer can correctly fill in the blanks? Select one: a. (1) Alternative Dispute Resolution. (2) Complaint. (3) Common law precedent and statutory rules. b. (1) Mediation. (2) An answer. (3) Common Law and statutory interpretation. c. (1) Summary Jury Trial. (2) Complaint. (3) the UCC and precedent. d. (1) Alternative Dispute Resolution. (2) Reply. (3) Common law and statutory rules.
(1) Multiple forms of ADR can be attempted prior to filing a lawsuit, including mediation and arbitration. Summary Jury Trial can only occur following a lawsuit being filed. (2) The first thing filed in order to begin a lawsuit is a Complaint. A reply is the defendant's response to an answer (usually the second document filed, unless there is a motion filed by the defense) and an answer is the plaintiff's response to the reply. (3) When deciding the outcome of a case, a judge most almost always consider common law precedent and statutory law surrounding the case. The UCC is the uniform commercial code, generally applicable to contracts between two sophisticated individuals or companies. The correct answer is: (1) Alternative Dispute Resolution. (2) Complaint. (3) Common law precedent and statutory rules.
Casey, while working for the corporation B12, injures David. This injury is the result of Casey acting outside his scope of employment. Regardless, B12 can be held liable for Casey's actions.
False Explanation: An employer generally can be held liable for the actions of an employee if the actions of the employee were within the scope of employment.
Choice of law is important because it decides where a case should be tried.
False Explanation: Choice of law is important because it determines what state, level of government, nation, or other source of law will apply to the case. The difference in which law applies may change the outcome of the case.
A party may make a special appearance at any point in a trial.
False Explanation: Most jurisdictions consider any defense claiming lack of personal jurisdiction to be waived when a party makes an appearance before the court.
The Due Process requirement of the constitution is met if a defendant has enough minimum contacts for the court to establish personal jurisdiction over the defendant.
False Explanation: Simply establishing minimum contacts does not always ensure that the Due Process requirement is met.
All cases in federal courts first appear before a federal district court.
False Explanation: Some cases, such as bankruptcy cases, first appear before a specialty court.
A party may file for a motion for judgment notwithstanding the verdict (also known as a J.N.O.V.) only prior to filing an answer. T/F
A J.N.O.V. or JMOL (judgment as a matter of law) may only be filed following a jury verdict. A motion to dismiss is filed prior to filing an answer. The correct answer is 'False'.
When doing an analysis to determine if a state regulation should be voided due to unduly burdening interstate commerce, the court balances the local interest being furthered by the regulation and the intent of the regulation.
A court will balance the local interest being furthered by the regulation against the degree of burden it places on interstate commerce. Intent is considered when the doctrine of discrimination against interstate commerce is being applied. The correct answer is 'False'.
It is generally easier for a plaintiff to win on summary judgment than a defendant. T/F
A defendant moving for summary judgment only needs to prove that there is no genuine issue of material fact while a plaintiff must produce evidence strong enough to prove all elements of the claim, the defendant failed to present evidence that creates any doubt about any elements of the claim, and the defendant has failed to present evidence sufficient to create a genuine issue regarding an affirmative defense. The correct answer is 'False'.
A deposition is a series of questions sent by one party to the other, which much be answered under oath. T/F
A deposition is testimony of a witness given under oath. Both parties are generally present during the testimony and have an opportunity to cross-examine the witness. The correct answer is 'False'.
Company Insiders are the only type of people who owe a duty to disclose or abstain. Select one: True False
False (Along with Company Insiders, Temporary Insiders, Misappropriators, and any Tippee of the first three categories owe a duty to disclose or abstain.)
When engaged in contact sports, all possible injuries are considered to be barred by the defense of consent.
If an injury occurred due to an action outside the rules of the game, it occurs outside of the consent given by the plaintiff. Due to this, an injury caused by an action outside of the rules of a game may be enough to state a claim for battery. The correct answer is 'False'.
Some warranties can be waived simply because the buyer expressly refused to examine the goods
If the buyer deliberately refuses to examine the goods at all, no implied warranty exists for reasonably apparent defects. The correct answer is 'True
The reasonable person standard is not always applied to cases of assault.
If the defendant knows that the plaintiff is an unusually sensitive person and threatens contact that the plaintiff finds offensive although most persons would not, an assault occurs. The correct answer is 'True'.
If a court in Texas grants a judgment against a debtor, but a court in California finds that Texas did not originally have jurisdiction, California may disregard the Full Faith and Credit Clause.
If the original court did not have jurisdiction over the original controversy, the courts of other states are not obligated to, and will not, recognize the judgment of the original court. The correct answer is 'True'.
In order to be convicted of a criminal offense, an act must be performed
If there is a legally imposed duty, a failure to perform may constitute the actus reus of a criminal offense. The correct answer is 'False'.
Which of the following are types of discovery tools generally used during pretrial discovery? Select one: a. Depositions. b. Interrogatories. c. Requests for production of documents. d. All of the above.
All of the above are tools for discovery used in most states and federal courts. Depositions are records of testimony taken outside of court. Interrogatories are written questions submitted by one party to the other, which must be answered under oath. A request for production of documents is a written request for the other party to provide documents relevant to the case. The correct answer is: All of the above.
An attorney generally cannot ever ask leading questions of a witness. T/F
Although an attorney is not allowed to lead the witness during direct examination, an attorney is allowed to lead the witness if it is an adverse witness. The correct answer is 'False'.
Which of the following would be considered slander? Select one: a. A false newspaper article. b. A false news report on a TV channel. c. Someone spreading rumors about you. d. A false radio report.
Although slander is generally oral, TV and radio broadcasts are generally considered libel. Spreading rumors can be an example of slander. The correct answer is: Someone spreading rumors about you.
A court enforces an injunction by charging the defendant with contempt of court if the defendant fails to perform. T/F
An injunction is typically enforced by the court holding defendants who fail to perform the court order in contempt of court. The correct answer is 'True'.
The First Amendment can, sometimes, bar recovery on a claim for intentional infliction of mental distress.
In Hustler Magazine v. Falwell, the plaintiff's claim was dismissed because the court held freedom of expression considerations to bar recovery. The correct answer is 'True'.
Congress is allowed to force individuals into commerce and regulate that interstate activity.
In Nat'l Federation of Indep. Business v. Sebelius, also known as Obamacare or the Affordable Care Act Case, the Supreme Court ruled in a 5-4 decision that Congress cannot force individuals into economic activity so that that activity can be regulated. The correct answer is 'False'.
Under the Lanham Act, a deceived costumer is generally the one to bring a suit against the corporation.
It is generally competitors who, while redressing their own injuries, seek under the Lanham Act to end false advertising that also injures consumers. The correct answer is 'False'. Lanham act: congress way to regulate unfair competition/ outlaws any false description/ rep
Joint and several liability means that each defendant can be forced to pay up to 100% of the damages and that the plaintiff can get several times the damages awarded to him.
Joint and several liability means that the plaintiff can get up to 100% of the damages awarded from either defendant, but not more than 100% total. The defendant who had to pay more than his or her share can then seek the difference in what they were supposed to pay from the other defendant. The correct answer is 'False'.
The rules of evidence apply even if there is no jury. T/F
The rules of evidence apply whether the judge or the jury is the fact finder in a given case. The correct answer is 'True'.
Which of the following Constitutional clauses requires that every state must recognize court judgments and other public actions of its sister states?
Article IV, section 1- The full faith and credit clause (The Full Faith and Credit Clause requires that every state must recognize court judgments and other public actions of its sister states.)
The implied warranty of fitness for a particular purpose can be applied even when the item was used for something other than its usual use.
As long as, at the time of the contracting, the seller had reason to know of the particular purpose for which the goods were bought, had reason to know the buyer was relying on the seller's skill or judgment to furnish the goods, an implied warranty of fitness for a particular purpose can be applied. The correct answer is 'True'.
A contract for the sale of corn is not considered a sale of goods, for the purposes of Article 2, if the corn will be severed from the land by the buyer.
Under § 2-107 of the UCC, a contract for the sale of growing crops or timber is a contract for the sale of goods, regardless who is to sever them from the land. The correct answer is 'False'. -the contract for sale of minerals or structure is goods only if its severed by the seller. (buyer is real estate).
AJ buys a car from Aaron. The car AJ buys breaks down the first day, so AJ sues Aaron. Because of the car breaking down, AJ has failed to make payments on the car. In most states, Aaron's suit against AJ must be brought as a compulsory counterclaim, or else it he will lose the ability to pursue the claim. T/F
Because Aaron's claim against AJ arises out of the same set of circumstances, it is a compulsory counterclaim. Compulsory counterclaims which are not brought in an answer are generally waived. The correct answer is 'True'.
Which of the following would be actionable under the Lanham Act, assuming all are false? Select one: a. Product A will help you lose 5 pounds in 5 weeks! b. Product X will let you fly! c. Product Z is America's Favorite Drink! d. None of the above.
Because it is a literally false factual commercial claim. B, although it is also a literally false factual commercial claim, falls into puffery because it is an exaggerated statement of bluster or boast upon which no reasonable consumer would rely. C is also considered puffery because it is a highly subjective claim of product superiority. The correct answer is: Product A will help you lose 5 pounds in 5 weeks!
Which of the following is not a level of protection against unreasonable distinctions the Supreme Court has identified? Select one: a. Minimum Scrutiny. b. Rational Basis. c. Strict Scrutiny. d. Intermediate Scrutiny.
Minimum Scrutiny is not a level of protection against unreasonable distinctions. Rational Basis Review applies primarily to economic and social legislation. Intermediate Scrutiny applies to classifications based on important personal characteristics other than race or national origin. Strict Scrutiny applies to distinctions based on ethnicity or national origin. The correct answer is: Minimum Scrutiny.
Unlike most Courts of Appeals, the Supreme Court does not divide into panels when reviewing cases. T/F
Most Court of Appeals, if they have more than 3 members, will break into panels of 3 when deciding a case. The Supreme Court, however, always reviews a case with all nine members, outside of special circumstances. The correct answer is 'True'.
If plaintiff are at all responsible for accidents in which they are involved, they may not recover from other parties under a theory of negligence. Select one: True False
False (Although a small number of jurisdictions still follow the system of contributory negligence, which holds that if plaintiffs ares responsible for any of the accident, even 1% of it, they cannot recover, most jurisdictions follow a theory of comparative fault now. Comparative fault holds that defendant pay for the percentage of fault they contributed to plaintiffs' injuries. However, the majority of jurisdictions follow a modified comparative fault scheme, which provides that if the plaintiff contributed 50% (in some jurisdiction) or more than 50% (in other jurisdictions) to his harm, he cannot recover at all.)
If someone does not become aware of an injury caused via the negligence of another for more than two years after the negligent act of another, their claim is not waived under the statute of limitations in most states.
Most states embrace a doctrine of tolling statute of limitations until the person becomes aware of their injury, within certain limitations. The correct answer is 'True'.
The Supreme Court will strike down laws made by Congress if it is obvious that interstate economic regulation is merely a guise Congress is using in order to regulate morality or interfere with state police powers. Select one: True False
False (Congress often uses the Commerce Clause as a constitutional foundation for enacting legislation even when its primary goal is not an economic one. Examples of this include laws aimed at protecting the environment and prohibiting employment discrimination.)
Plaintiffs are able to recover punitive damages from negligence claims. Select one: True False
False (Punitive damages are generally reserved for intentional torts because they are seen as a punishment instead of simply compensation.)
If A shoots at B, but accidentally hits C, A is not liable for a battery against C because he had no intent to injure C. Select one: True False
False (Under the doctrine of transferred intent, if A has intent to battery anybody (or assault anybody), he is liable for any battery he may complete.)
State governments may outlaw corporate speech if the speech would not materially affect the business
False. In First National Bank of Boston v. Bellotti, the Supreme Court stated that "the inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of the source." Because of this, corporate political speech is protected.
T/F: Every state has a separate Federal Circuit court.
False. There are only 13 Federal Circuit Courts.
T/F: All claims a defendant has against a plaintiff must be raised as a counterclaim in the answer.
False.Only compulsory counterclaims, that is, counterclaims that arise out of the same set of circumstances that led to the plaintiff's claim, must be raised in the answer. Furthermore, not all jurisdictions make any counterclaims compulsory. Non-compulsory counterclaims, also known as permissive counterclaims, may be brought as separate suits.
A website accessible in a jurisdiction is enough to establish general jurisdiction
False: Simply having a website, "without requiring some level of 'interactivity' between the defendant and consumers in the forum state" is not enough to establish general jurisdiction in a given jurisdiction.
A court will generally consider the textual context of a statute when attempting to determine the meaning of an ambiguous statute, prior to taking into account the circumstantial context of the passing of the statute. T/F
Courts often consider the textual context of a statute when trying to interpret the meaning of the statute prior to considering the circumstantial context of when the statute was passed. The correct answer is 'True'.
All cases before a federal circuit court have the right to be heard on appeal.
False: The Supreme Court gets to choose which cases it hears. Generally, only cases granted writ of certiorari are heard by the Supreme Court.
The UCC is Federal law that applies to all states
False: The UCC is made by a non-government entity offered in hopes that all states accept it, in order to increase uniformity for legal issues faced by multi-state corporations. Although most states have adopted it, many states still have variations of many pieces of it.
All portions of the constitution that apply to state governments also apply to the federal government.
For example, article I, section 10, also known as the Contract Clause, applies only to the states. It is intended to prevent states from changing the terms of existing contracts by passage of subsequent legislation. The correct answer is 'False'.
Some individuals, such as judges and attorneys, may have absolute privilege against defamation. This means that, even if all the elements of defamation are established, they are still immune to any claims of defamation.
However, this judicial privilege is limited in time and scope, so statements made outside the courtroom may not be protected. The correct answer is 'True'.
Disclosing true facts may create a valid tort claim.
Disclosure of true facts would not be defamation, but could constitute the tort of disclosure of embarrassing or offensive private facts in some jurisdictions. The correct answer is 'True'.
Which of the following is a reason a potential juror may be dismissed during voir dire? Select one: a. An attorney uses a peremptory challenge or a strike against the juror. b. A judge excuses a person by granting a challenge for cause made by one of the attorneys. c. The potential juror requests to hear a separate case. d. A and B.
Each side gets may issue challenges for cause, which allow a party to request the judge removes jurors that have certain biases the party wants to avoid. Each side generally also has a number of peremptory challenges, also known as strikes, which allow the party to remove a potential juror from the pool with or without just cause. The correct answer is: A and B.
Under § 402A of the UCC, a strict liability claim will not be supported if the suit arises simply because the product fails to perform its ordinary purpose.
Strict liability claims under § 402A of the UCC only covers a defective product if it is "unreasonably dangerous." The correct answer is 'True'.
Most express warranties can easily be disclaimed via the text of a contract.
Such a statement would almost always be inconsistent with the words or conduct that created the express warranty. Because of this, it is extremely difficult for a seller to disclaim an express warranty which has become part of a contract. The correct answer is 'False'.
An individual cannot recover for emotional damages absent physical injury in a negligence case.
Originally, courts allowed recovery for negligently caused emotional distress only when the plaintiff also sustained a physical injury. However, many courts have changed their views as psychiatric testimony regarding the actual existence of emotional distress has become more dependable. The correct answer is 'False'.
Which of the following are factors in determining if a duty is owed to assist a third party? Select one: a. Foreseeability of harm to the plaintiff. b. Extent of the burden to the defendant. c. Consequences to the community of imposing a duty to exercise care with resulting liability for breach. d. A and C. e. All of the Above.
Other factors include the degree of certainty that the plaintiff suffered injury, the closeness of connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the availability, cost, and prevalence of insurance for the risk involved. The correct answer is: All of the Above.
Even if a duty of care is established, and a legal cause is established, the defendant may still not be liable for a claim of negligence.
Other factors, such as an independent intervening cause, may cause the jury or the judge to rule that the defendant is not liable for negligence even though the defendant was more careless than a reasonable person would have been. The correct answer is 'True'.
Which of the following is, according to Benjamin Cardozo, a "directive force" which shapes the law?
Philosophy, history, custom, and social welfare
Which of the following requirements does not have to be met in order for a commercial speech regulation to be constitutionally permissible? Select one: a. The regulation directly advances the governmental interest and is not more extensive than is necessary to serve that interest. b. The regulation does not interfere with properly informing the consumer of alternatives. c. The speech in question must concern lawful activity and not be misleading. d. The asserted governmental interest to be served by the regulation must be substantial.
Regardless of the regulated information, it is very likely that regulation of commercial speech, especially advertising, will result in consumers being less informed. In Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, the Supreme Court held that A, C, and D must all be met in order for commercial speech regulation to be constitutionally permissible. However, if the speech in question concerns unlawful activity or is misleading, it may be censored for other reasons. The correct answer is: The regulation does not interfere with properly informing the consumer of alternatives.
Which of the following Constitutional clauses requires that every state must recognize court judgments and other public actions of its sister states? Select one: a. Article IV, section 1- The Full Faith and Credit Clause. b. Article I, section 10- The Contract Clause. c. Article VI, section 1- The Supremacy Clause. d. None of the Above.
The Full Faith and Credit Clause requires that every state must recognize court judgments and other public actions of its sister states. The correct answer is: Article IV, section 1- The Full Faith and Credit Clause. The contract clause The Contract Clause, which applies only to the states and not to the federal government, is intended to prevent states from changing the terms of existing contracts by passage of subsequent legislation. The supremacy clause The Contract Clause, which applies only to the states and not to the federal government, is intended to prevent states from changing the terms of existing contracts by passage of subsequent legislation.
The Magnuson-Moss Warranty Act applies to all purchases and sales.
The Magnuson-Moss Act applies only to purchases by ultimate consumers for personal, family, or household purposes and not to transactions in commercial or industrial settings. The correct answer is 'False'. -prevents deceptive warrant practices. makes consumer warranties easier to understand. it is more narrow than express warranties under UCC
Federal Preemption can apply to conflicts that don't involve the Commerce Clause.
The concept of federal preemption is a general principle of constitutional law that applies to any state-federal conflict. The doctrine of preemption is relevant regardless of whether particular federal power comes from the Commerce Clause or from other provision of the Constitution. The correct answer is 'True'.
Mere insults are usually sufficient for a claim of intentional infliction of mental distress.
The defendant's conduct must usually be extreme and outrageous to constitute IIED. The correct answer is 'False'.
Protecting a third party's legitimate interests can be a defense to a claim of intentional interference with business relationships. Select one: True False
True (Malice is not found if the defendant's actions are legally justifiable, such as when a third party's legitimate interests are being protected by the action.) other defenses: privilege of competition (right to compete as long as no improper means were used) justification defense (only if its aimed at protection a 3rd parties legit interests) managers privilege (only if they had the best interest with company)
Negligence per se can be applied when a court finds an act negligent because an individual has violated a statute. Select one: True False
True (Negligence per se is a doctrine that states that someone is necessarily negligent if they broke a certain statute, such as a speed limit, and then an accident occurred, such as a wreck. In situations such as these, the court will assume the defendant was acting negligently simply because they broke a law which was intended to prevent such accidents. To prevail, plaintiffs must still establish that the defendant owed a duty of care and that plaintiffs suffered injuries proximately caused by the breach of duy.)
The Privileges and Immunities Clause applies only to individuals and not to corporations. Select one: True False
True (The P&I Clause is one of the few constitutional protections that applies only to individuals and not to corporations.) The basic aim of the Privileges and Immunities Clause (PIC) is to prohibit states from discriminating against residents of other states merely because of their residency
If a state law is more stringent than a federal law concerning the same subject matter, it is invalidated due to the principle of direct conflict.
The principle of direct conflict does not void the law just because the state provision deals with the same type of activity. Moreover, the mere fact that a state law is more stringent than a similar federal law does not automatically make the state law void. The correct answer is 'False'
Which of the following has not been considered by courts when determining if the defendant owed the plaintiff a duty of care in a negligence claim? Select one: a. A policy of preventing future harm. b. The relative wealth of the parties. c. The availability, cost, and prevalence of insurance for the risk involved. d. The moral blame attached to the defendant's conduct.
The relative wealth of the parties is not listed as a factor taken into consideration when deciding if the defendant owed a duty to the plaintiff. Other factors considered are the foreseeability of the harm to the plaintiff, the degree of certainty the plaintiff suffered an injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with the resulting liability. The correct answer is: The relative wealth of the parties.
There are generally three conditions that a challenger must prove in order to make a case for implied preemption: the regulation is relatively comprehensive, there is a need for uniform national regulatory policy in the area of the regulation, and the regulation is outside of the state's police power regardless of the issue of preemption.
There are only two conditions for implied preemption to be found in most circumstances: the regulation is relatively comprehensive and there is a need for uniform national regulatory policy in the area of the regulation. The correct answer is 'False'.
The party requesting electronic discovery materials always has to bear the cost of the production. T/F
There is a 7 factor test, outlined in Zubulake v. UBS Warbug PLC, 216 F.R.D. 280 (S.D.N.Y. 2003) for determining the extent to which a plaintiff seeking documents should bear the cost of production of the documents. However, the general rule is that the party that produces the documents must bear the reasonable cost of production. The correct answer is 'False'.
In order to prove a claim of negligence, the plaintiff must establish: (1) that the defendant owed the plaintiff a duty of care, (2) that the defendant breached that duty of due care, (3) that the defendant's breach proximately caused the injury, and (4) that the plaintiff suffered injury.
These are the four basic elements required to state a claim for negligence. The correct answer is 'True'.
If Congress exercises its authority expressly to preempt state regulation, no state can adopt a law that is essentially the same as the law provided by Congress.
This is called express preemption and is a power derived from the Supremacy Clause. The correct answer is 'True'.
All contracts for a sale of goods exceeding $500 must be in writing in order to be enforceable.
This is under an Article 2 provision called contract enforcement and this part is considered the statute of frauds. Under § 2-201, a verbal contract exceeding $500 can be binding if (1) the seller has already substantially begun producing specially made goods; (2) payment has been made and accepted or goods have been received and accepted; (3) between merchants there has been a confirmatory memorandum sent and the receiving party did not object in writing within 10 days; or (4) the party against whom the contract is to be enforced admitted in court proceedings that an oral agreement existed. The correct answer is 'False'. other parts of contract enforcement includes parol evidence rule: allows unambiguous final written agreements to be explained or supplemented by course of dealing, usage of trades, or course of performance.
Personal jurisdiction over certain cases, such as bankruptcy cases, can be established simply by having property relevant to the suit within the jurisdiction of the court.
True Explanation: "In Rem" jurisdiction, which can be established by having property within the jurisdiction of the court, can satisfy jurisdictional requirements for a case.
Although each state has its own individual sets of law in many areas, laws state from state are largely the same.
True Explanation: Most bodies of laws, although they do vary from state to state, are largely the same
Following the custom of an industry or culture may be evidence that the defendant met the "reasonable person" standard, even if people of a different industry or culture may find this action reckless. Select one: True False
True (Although in cases such as The T.J.Hooper, industry custom did not prevent liability, following an industry or cultural standard often constitutes following a reasonable person standard.)
An exception to the Contract Clause may exist if the legislation is reasonably necessary to further a substantial state interest. Select one: True False
True (Even if a state law does have an effect on preexisting contracts, the legislation does not violate the contract clause if the law promotes an important state interest and interferes with contracts only to an extent that is reasonably necessary to further that state interests.)
The reasonable person standard is not always applied to cases of assault. Select one: True False
True (If the defendant knows that the plaintiff is an unusually sensitive person and threatens contact that the plaintiff finds offensive although most persons would not, an assault occurs.)
Congress can regulate activity as long as, when the aggregate effect of breaking the law is considered, it would have an effect on interstate commerce.
True (In Wickard v. Filburn, the Supreme Court held that Congress can regulate the growth of wheat, even if it is used for entirely personal purposes, as long as, when taken in aggregate, the effect of the activity would alter interstate commerce.)
If the plaintiff properly proves all the necessary elements of his claim, he can still lose a civil case.
True- affirmative defense It must be remembered that the plaintiff in a civil lawsuit (and the prosecution in a criminal case) bears the overall burden of proof. In other words, if the plaintiff does not ultimately produce evidence that convinces the jury (or judge if there is no jury) of the correctness of the allegations in the complaint, the plaintiff loses. Although the defendant must respond with an answer, he or she is not obligated to prove anything. Nevertheless, if a defendant believes that the facts create a legally recognized defense (sometimes called an affirmative defense) against the plaintiffs claim, he or she will assert the defense in the answer after the denial. A defense defeats the plaintiff's claim even if the plaintiff is able to prove those facts that establish all the elements of his or her claim. Asserting a defense consists of alleging those facts that, if ultimately proved by the defendant, will establish a legally recognized defense against the plaintiff's claim. For virtually every type of civil claim, the law recognizes one or more defenses. In the boat example, the defendant might allege as a defense to the breach of warranty claim that there was a disclaimer in the sale contract stating clearly and conspicuously that the boat was a reconditioned one and was being sold on an "as is" basis. If proved, this allegation would defeat the plaintiff's breach of warranty claim. Such a defense would not defeat a fraud claim, however. (In criminal cases, there are also legally recognized defenses against virtually all types of criminal charges.)
T/F: A court enforces an injunction by charging the defendant with contempt of court if the defendant fails to perform.
True. An injunction is typically enforced by the court holding defendants who fail to perform the court order in contempt of court.
T/F: When expanding a business, a company must consider if they will be subject to legal liability in a new jurisdiction and if the new jurisdiction is more or less favorable to businesses attempting similar ventures.
True. By expanding into a new jurisdiction, businesses often subject themselves to personal jurisdiction in new locations. By doing so, they can be sued in the new jurisdictions which may have laws less favorable to them.
T/F: Following a law may lead to immoral actions.
True. Some laws, are those passed under dictators or many years ago forced individuals to perform actions which we would consider immoral today.
For a criminal trial, the government must prove their case "beyond a reasonable doubt" in order to secure a guilty verdict.
True: Civil cases vary, but generally require proof by a "preponderance of evidence."
Even if it is possible to comply with both a federal and state law, the state law may still be struck down under the principle of direct conflict.
True: If the state law substantially interferes with the purpose of the federal, the state law may still violate the principle of direct conflict.
Congress can regulate activity as long as, when the aggregate effect of breaking the law is considered, it would have an effect on interstate commerce.
True: In Wickard v. Filburn, the Supreme Court held that Congress can regulate the growth of wheat, even if it is used for entirely personal purposes, as long as, when taken in aggregate, the effect of the activity would alter interstate commerce.
The Bill of Rights does not necessarily prevent individual corporations from refusing to allow their employees to exercise free speech.
True: The Bill of Rights only directly affects governmental agencies. However, Constitutional protections apply when a governmental body either compels the private action or substantially participates in it or when governmental power is used to enforce the private action against others.
Under current standards, in order for a claim to be dismissed for failure to state a claim, there must be no possible set of facts given which would allow for the plaintiff to recover. T/F
Under Twombly and Iqbal, all that is required for a judge to dismiss for failure to state a claim is that a complaint would allow for a "savvy trial judge" to find the alleged facts improbable and that the plaintiff's chance of ultimately winning is highly unlikely. The correct answer is 'False'. In its first definitive interpretation of Rule 8 in Conley v. Gibson, 355 U.S. 42 (1957), the U.S. Supreme Court ruled that a complaint should not be dismissed for "failure to state a claim" (failure to allege sufficient facts which, if proved, would establish a legally recognized claim against the defendant "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
One of the disadvantages of arbitration is that it is not legally binding. T/F
Under the Federal Arbitration Act, all written commercial arbitration agreements and arbitrator awards are legally enforceable if the underlying business transaction affected interstate commerce. Even in instances where the underlying business transactions do not affect interstate commerce, state arbitration statutes in every state usually make the arbitration agreement and award enforceable. The correct answer is 'False'.
The government can legally force you to sell your property to them.
Under the Takings Clause of the Fifth Amendment, which has been incorporated to apply to state and local governments, the power of eminent domain may be exercised by governments to take land "for public use with just compensation." The correct answer is 'True'.
John was dissatisfied with the work environment he had to endure while working at B12. John had to work in a building where the A/C was never put below 75 degrees. Under the Fair Labor Standards Act (FLSA), a piece of federal legislation outlining certain practices which employers engaged in interstate commerce can and cannot do, an employee has the ability to bring a lawsuit against a company if the company fails to meet certain standards. These standards include a mandatory minimum wage, overtime regulations, and child labor regulations. John would be able to sue under the FLSA. T/F
Under the rule of interpretation known as expressio unius est exclusio alterius, it is assumed that when there is a list of certain items, the exclusion of others is presumed to be intentional. Therefore, because the FLSA allows for a suit arising from violation of minimum wage laws, overtime regulations, or child labor regulations, it is implied that other issues, such as uncomfortable working conditions, are excluded from being enforced under the act. The correct answer is 'False'.
Which of the following is generally not considered when deciding whether an individual is able to receive "bystander recovery" from a negligence claim? Select one: a. Whether the emotional shock resulted from a contemporaneous perception of the accident. b. Whether the plaintiff and the victim were closely related. c. Whether the plaintiff was located near the scene of the accident. d. Whether the plaintiff and the defendant were closely related.
Whether the plaintiff and the defendant were closely related is generally not considered when determining if a plaintiff is able to receive "bystander recovery." The correct answer is: Whether the plaintiff and the defendant were closely related.
Which of the following would generally not be considered a taking? Select one: a. Zoning laws. b. A requirement that a landowner must grant public access on beachfront property in order to get a building permit. c. Building a highway through the property. d. Creating an area where air traffic must fly low above property.
Zoning laws are almost never considered takings because they benefits property values on the whole. All of the other actions either deprive an owner of their property or significantly lowers the value of the property. The correct answer is: Zoning laws.
Which of the following is not a label used to identify the different level of duty a landowner owes to a person on his property? Select one: a. A visitor. b. A trespasser. c. A licensee. d. An invitee.
a. (A visitor is not a term used to differentiate between various levels of duty a landowner may owe to a person on his property.)
Which of the following is not an affirmative defense to a claim of assault and battery? Select one: a. Mistake. b. Statute of Limitations. c. Self-defense. d. Consent.
a. (Mistake is not an affirmative defense to a claim of assault and battery. All of the others are.)
A contract between a TX corporation and a CA corporation, containing a provision that all litigation regarding the contract will be preformed in Maine. The contract was signed in NY. What state's law should apply under the traditional view? Texas, California, New York, or Maine
a. Texas b. California c. New York*** d. Maine Explanation: The traditional view is to apply the law of the state in which the contract was made. Because the contract was signed in NY, NY's law should apply.
Which of the following is the largest difference between the doctrine of unduly burdening interstate commerce and the doctrine of discrimination against interstate commerce. Select one: a. Unduly burdening interstate commerce focuses only on the impact of legislation while discrimination against interstate commerce focuses on how the federal law interacts with the questioned state law. b. Unduly burdening interstate commerce focuses only on the impact of legislation while discrimination against interstate commerce involves a question of intent. c. Unduly burdening interstate commerce involves a question of intent of the legislation while discrimination against interstate commerce focuses on the impact. d. None of the above.
b. (Unduly burdening interstate commerce focuses only on the impact of legislation while discrimination against interstate commerce involves a question of intent. However, the impact of the legislation may be considered while doing an analysis of either of the concepts.)
Which of the following is not an element of the tort of assault and battery? Select one: a. Defendant's affirmative conduct. b. Plaintiff's injury. c. Duty of care. d. Intent.
c. (Duty of care is not an element necessary to establish a case of assault and battery.)
What happens when an appellate court finds that a lower court judge erred in granting summary judgment? a. The court reverses the judgment and the party that lost the summary judgment wins b. The appellate court retries the case and announces a new verdict c. The case is dismissed d. The case is remanded to the lower court with instructions on what the lower court erred and how to properly try the case
d. The case is remanded to the lower court with instructions on what the lower court erred and how to properly try the case** Explanation: The case is remanded to the lower court for a new trial. The appellate court includes instructions stating how the lower court erred and how to properly try the case.
Which of the following is an element required for a cause of action under defamation? Select one: a. The statement was made as though it were a fact. b. The statement was defamatory. c. The statement was false d. The plaintiff's reputation was harmed. e. All of the above.
e. (All of the above are elements of defamation. The statement also must be communicated by the defendant to at least one other person.)
Te defendant bears the burden of proof of proving their innocence in a civil case
false: The plaintiff bears the overall burden of proof in a civil case and must prove, by a preponderance of the evidence, that the defendant committed the alleged acts and that none of the potential affirmative actions the defendants claim are true.
A merchant's verbal promise to keep an offer open for two weeks, in the absence of paid consideration, is binding under Article 2.
this is part of the article 2 provisions and is called contract formation. Under the UCC's firm offer rule, merchants can only be forced to hold an offer open if the offer to keep it upon is written -this differs from common law b/c it can revoke offer at anytime. -other parts of contract formation includes gap filler provisions; battle of the forms (allows court to iron out disagreements btw parties and gives rules to decide content/ban surprises in fine print -doctrine of promissory estoppel does not play a role in article 2 (changing stances on promise but it can still be enforced). The correct answer is 'False'.
If a defendant fails to respond to a complaint within a certain amount of time (generally 20 days), a default judgment is granted against the defendant and the plaintiff wins by default.
true
A jury is, in most civil cases, considered to be a "judge of facts" while the judge is only the "judge of the law".
true The judge's job in many civil proceedings is to make sure the jury applies the correct standards in deciding the case and that the attorneys follow the proper procedures during the trial. The correct answer is: True