Review for Exam 1

In personam jurisdiction

"jurisdiction over the person" is a court's power to render a decision affecting the rights of the specific persons before the court. Generally, a court's power to exercise in personam jurisdiction extends only over a specific geographic region. In the state court system, a court's in personam jurisdiction usually extends to the state's borders. In the federal system, on the other hand, each court's jurisdiction extends across its geographic district.

Complaint

specifies the factual and legal basis for the lawsuit and the relief the plaintiff seeks.

More Torts

False Light A privacy tort that occurs when highly offensive information is published about an individual that is not valid or places the person in a false light. Public Disclosure of Private Facts occurs when someone publicizes a private fact about another that a reasonable person would find highly offensive appropriation for commercial gain occurs when someone uses another person's name, likeness, voice, or other identifying characteristic for commercial gain without that person's permission, a type of privacy tort. intrusion on an individual's affairs or seclusion occurs when someone invades a person's solitude, seclusion, or personal affairs when the person has the right to expect privacy Intentional Infliction of Emotional Distress occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to another party. sometimes called torts of outrage example, if a personal calls his former employer and falsely says her son was just arrested for a double homicide after a botched robbery attempt, most courts would find that behavior outrageous enough to satisfy the first element of the tort. Before damages are awarded in some jurisdictions, the plaintiff must demonstrate injury through physical symptoms directly related to the emotional distress. like if she fainted and hit her head, or headaches, a sudden onset of high blood pressure, hives, chills, inability to sleep, and inability to get out of bed. The bar for what is considered outrageous is high, as are the standards for emotional distress. Trespass to realty also called trespass to real property. occurs when a person intentionally (1) enters the land of another without permission; (2) causes an object to be placed on the land of another without the landowner's permission; (3) stays on the land of another when the owner tells him to depart; or (4) refuses to remove something he placed on the property that the landowner asked him to remove Private Nuisance occurs when a person uses her property in an unreasonable manner that harms a neighbor's use or enjoyment of his property Trespass to Personal Property A person commits trespass to personal property, also called trespass to personalty, by temporarily exerting control over another's personal property or interfering with the owner's right to use it. temporary interference with another's use or enjoyment of his or her personal property conversion occurs when a person permanently removes personal property from the owner's possession and control Legal Principle: When a person temporarily deprives another of the use and enjoyment of his personal property, a trespass to property occurs, if that deprivation becomes permanent, conversion has occurred. disparagement A business tort that occurs when a statement is intentionally used to defame a business product or service. slander of quality A business tort that occurs when false spoken statements criticize a business product or service and result in a loss of sales. trade libel A business tort that occurs when false printed statements criticize a business product or service and result in a loss of sales. slander of title A business tort that occurs when false published statements are related to the ownership of the business property. food disparagement A tort that provides ranchers and farmers with a cause of action when someone spreads false information about the safety of a food product. intentional interference with contract The tort that occurs when someone intentionally takes an action that will cause a person to breach a contract that he or she has with another. unfair competition The act of competing with another not to make a profit but for the sole purpose of driving that other out of business. Fraudulent Misrepresentation aka intentional misrepresentation 1) the tort that occurs when a misrepresentation is made with the intent to facilitate personal gain and with the knowledge that it is false 2) in contracts, a false representation of a material fact that is consciously false and is intended to mislead the other party To prove this tort occurred: 1. Someone knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions. 2. The defendant intended to have other parties rely on the misrepresentations. 3. The injured party reasonably relied on the misrepresentations. 4. The injured party suffered damages because of this reliance. 5. A direct link exists between the injured suffered and a reliance on the misrepresentations. Misappropriation using another person's name, likeness, voice, or other identifying characteristic for commercial gain without that person's permission Tortfeasor a person who commits an intentional or through-negligence tort that causes a harm or loss for which a civil remedy may be sought.

The examination of witnesses and presentation of evidence

Following opening statements, the plaintiff and defendant, in turn, present their cases in chief by examining witnesses and presenting evidence. The plaintiff has the burden of proving the case, meaning that if neither side presents a convincing case, the fact finder must rule in favor of the defendant. Thus, the plaintiff presents her case first. The plaintiff's attorney questions the witness in direct examination. The plaintiff's attorney asks the witness questions to elicit facts that support the plaintiff's case in chief. Hearsay is testimony about what a witness heard another person say. Attorneys cannot elicit "hearsay" from the witnesses. Hearsay is impermissible because the opposing attorney cannot question the person who made the original statement to determine the statement's veracity. cross examine- after direct examination, opposing counsel may cross examine the witness. After cross examination, the plaintiff's attorney can conduct a redirect examination, a series of questions to repair damage done by the cross examination. At the judge's discretion, opposing counsel has an opportunity to re-cross the witness to question his testimony on redirect examination.

answer

the defendant's response to the complaint

Chapter 3 Jurisdiction

the power of a court to hear cases and resolve disputes.

Chapter 4 Alternative Dispute Resolution (ADR)

the resolution of legal problems through methods other than litigation

The Fourth Amendment

Freedom from unreasonable searches and seizures. It guarantees citizens the right to be "secure in their persons, their homes, and their personal property." Thus, it prohibits government from conducting unreasonable searches of individuals and seizing their property to use as evidence against them. Trick to remember this- a house with *4* corners cannot be searched unreasonably. Search Warrant is a court order that authorizes law enforcement agents to search for or seize items specifically described in the warrant. Government enforcement officials can obtain search warrants only if they can show probable cause too believe that the search will uncover specific evidence of criminal activity. The Supreme Court has ruled that in certain circumstances, gov officians do not need a search warrant. Like when law enforcement officials believe it is likely that the items sought will be removed before they can obtain a warrant, they may conduct a search without a warrant. Law enforcement officials frequently conduct automobile searches without a warrant according to this rule. In most other cases, though, law enforcement officials must obtain a warrant before conducting a search. Supreme Court's holdings in 2013, Florida v. Jardines, the high court held that bringing a drug sniffing dog onto someone's front porch without a warrant does violate the Fourth Amendment's protection against warrantless searches. Justice Scalia wrote that a person's minimal expectation of privacy extends not only to his house but to its immediate surrounding such as the porch. The high court upheld has upheld case where drug sniffing dog accompanying an officer to a person's vehicle for a routine stop found drugs in truck. Police are generally not allowed, without a warrant, to search digital information on a cell phone seized from an individual who had been arrested. In addition to protecting individuals and their homes, the Fourth Amendment also protects corporations and places of business. Although administrative searches usually require search warrants, courts have established an exception to this rule: If an industry has a long history of pervasive regulation, a warrantless search is not unreasonable. In such industries, administrative agencies can use warrantless searches to ensure that firms uphold regulations. This persuasive-regulation exception, however, is not always easy to interpret. Courts have ruled that warrantless searches authorized by the Federal Mine Safety and Health Act are legal because the federal regulatory presence is comprehensive and well defined. Thus, reasonable commercial-property owners ought to know that their property is subject to periodic inspections. A warrantless search based on the Occupational Safety and Health Act, however, may violate the Fourth Amendment because no significant legislation of working conditions existed before Congress passed that act in 1970. Hence, business people covered by the law cannot reasonably anticipate warrantless searches. For example, in the 1988 US Supreme Court case Braswell v. United States, the Court distinguished between the rights of corporate-record custodians and sole proprietors. The Court held that the subpoena would have violated Braswell's privilege against self-incrimination if his business had been a sole proprietorship.

adversarial negotiation

Negotiation in which each party seeks to maximize its own gain.

problem-solving negotiation

Negotiation in which the parties seek to achieve joint gain.

deposition

a pretrial sworn and recorded testimony of a a witness that is acquired out of court with no judge present. Trick to remember- witness doesn't want to be dead (de) so records testimony out of court.

Reply

a response by the plaintiff to the defendant's counterclaim. plaintiff admits, denies, or claims a lack of knowledge as to the accuracy of the facts of the defendant's counterclaim. If the plaintiff plans to use an affirmative defense, she must raise it in the reply.

arbitration

a type of alternative dispute resolution wherein disputes are submitted for resolution to private nonofficial persons selected in a manner provided by law or the agreement of the parties. The Federal Arbitration Act- strong fed public policy in favor of arbitration. contractual agreements may stipulate how the arbitration will be selected and how the hearing will be administered. hearing, then legally binding decision. award is arbitrator's decision even if no monetary compensation is awarded. The FAA lists for grounds on which an arbitrator's award may be set aside: 1. The award resulted from corruption, fraud, or other undue means. 2. The arbitrator is bias or corrupt. 3. The arbitrator refused to postpone the hearing despite sufficient cause, refused to hear relevant evidence, or otherwise misbehaved to prejudice the rights of one of the parties. 4. The arbitrator exceeded his or her authority or failed to use that authority to make a mutual, final, and definite award. Misused his authority in making award. US Supreme Court has held these 4 are exclusive grounds for vacating, modifying, or correcting an arbitrator's award, and parties cannot expand on these grounds in contracts. -more efficient and less expensive than litigation. -parties have more control over the process. -parties can choose someone to serve as the arbitrator who has expertise in specific subject matter. -arbitrator has greater flexibility in decision making than a judge has. Unlike judges, who are bound by precedent, arbitrators generally do not have to offer reasons for their decisions. -loss of some prior advantages like using a panel. -appealing an arbitration award is hard, injustice more likely to occur. -by agreeing to give up right to litigate, one maybe losing important civil rights or giving up important potential remedies. -as more and more employees and institutions turn to mandatory arbitration, it will become more like litigation. -the privacy associated with arbitration. comps and employers are able to hide their disputes through arbitration. From Class Notes- like a mini trial. Outside judicial setting. you call witnesses and try your case in front of arbitrator. (often retired judges). To get parties to settle. -conference table -ultimately decision is reached. -binding arbitration- you're stuck with that decision, expect by limited grounds. -nonbinding arbitration - file suit afterwards, (go to trial). you can pick specialized arbitrator.

Bill of rights

The first ten amendments to the Constitution

Service of Process

To obtain in personam jurisdiction over a defendant and to satisfy due process, a court must notify the defendant of the pending lawsuit. Service of process occurs when the defendant is given a copy of the complaint and summons by a process server or by certified or ordinary mail.

The prohibition against uncompensated Takings

The Fifth Amendment also provides that when governments takes private property for public use, it must pay the owner just compensation, or fair market value, for this property. This provision is called the takings clause, and it applies to corporations. A *regulatory taking*, entitling a property owner to just compensation, occurs when a *regulation deprives the property owner of all economically beneficial uses of the land.*

Rational-basis test

The lowest standard of review; requires that a law be designed to protect a legitimate state interest and be rationally related to that interest. Because courts begin their analysis with a strong presumption that the government actions is constitutional, almost all laws pass this test.

submission agreement

A contract which provides that a specific dispute will be resolved in arbitration.

Fraud

emcompases a variety of means by which an individual intentionally uses misrepresentation to gain an advantage over another. Fraud generally required the following three elements (1) a material false representation made with intent to deceive (scienter), (2) a victim's reasonable reliance on the false representation, and (3) damages. Class Notes- (1) False representation of a material fact. Material facts are facts that are so important that it leads to decision of person. Ex. misrepresenting the material of a house, color, sq. (2) reasonable reliance. Jury determines what's reasonable. Has to be reasonable, not like take that the ocean is red as fact. (3) Damages, has to be same type of loss to you. *securities fraud* also known as stock fraud and investment fraud, is a deceptive practice in the stock or commodities markets that induces investors to make purchase or sale decisions on the basis of false info, frequently resulting in losses. *Insider trading* is generally the buying and selling of a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, nonpublic information about the security. Violations may also include "tipping" such information and trading on it by the person "tipped." *Stock-option backdating* occurs when an employee falsifies documents to make it appear as if the company had granted options on certain dates. *False pretenses* another type of fraud is the illegal obtaining of property belonging to another through materially false representations of an existing fact, with knowledge of their falsity and intent to defraud. ex. Suppose Jim goes door-to-door selling vacuum cleaners at an amazing discount. To obtain the discount, the customers must pay immediately for delivery in three to five business days. However, Jim has no vacuum cleaners and does not plan on delivering any. *Forgery* is the fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another. *Mail Fraud* one of the most frequently prosecuted frauds, the use of mail to defraud the public, which is a federal crime under the Mail Fraud Act of 1990. To prove it, gov must demonstrate (1) an intent to defraud and (2) the use of or causing the use of mail to further the fraudulent scheme. *health care fraud* Any fraudulent act committed in the provision of health care products or services. is top priority after violent crime. *Telemarketing Fraud* there are different techniques that are used to commit telemarketing fraud. uses telephone to commit a fraudulent act. cramming is a scheme in which companies bill consumers for optional services they did not order. Another is slamming, in which consumers are tricked into changing their phone service to another carrier. *bankruptcy fraud* a debtor might hide assets so that they will not be considered during the proceedings, or a creditor might file a false claim against a debtor. *Pretexting* Using fraudulent means to obtain information about someone's phone use. is using or causing others to use false pretenses, fraudulent statements, fraudulent or stolen documents, or other misrepresentations, including posing as an account holder or employee of a telecommunications carrier, to obtain telephone records of another. Defalcation the misappropriation of trust funds or money held in a fiduciary capacity False Entry an entry in the books of a bank or corporation designed to represent funds that do not exist False Token A false document or sign of existence used to perpetrate a fraud, such as making counterfeit money Fraudulent Concealment the suppression of a material fact that a person is legally bound to disclose Check Kiting Drawing checks on an account in one bank and depositing them in an account in a second bank when neither account has sufficient funds to cover the amounts drawn. Just before the checks are returned for payment to the first bank, the kiter covers them by depositing checks drawn on the account in the second bank. The brief delay in transferring funds from one bank to the other, known as the "float" time, creates an artificial balance in the account. Mortgage and Real estate Any fraudulent act committed by anyone involved in a real estate transaction, including sellers, buyers, mortgage brokers, title closers, land developers, and real estate lawyers.

Concurrent Authority

both governments have the power to regulate the same subject matter. both the state and federal court systems have the power to render a binding verdict for this type of case.

The privilege against Self-incrimination

Although most provisions of the Fifth Amendment apply to corporations, corporations do not enjoy the Fifth Amendment's protection against self-incrimination. Sole proprietors, however, are entitled to this protection. Thus, different businesses have different constitutional rights depending on their form of business organization.

Plaintiff Doctrines

*Res ipsa Loquitar* literally means *"the thing speaks for itself."* a doctrine that allows a judge or jury to infer that, more likely than not, the defendant's negligence was the cause of the plaintiff's harm even though there is no direct evidence of the defendant's lack of due care. To establish res ipsa loquitur in most states, the plaintiff must demonstrate that: 1. The event was a kind that ordinarily does not occur in the absence of negligence. 2. Other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated. 3. The indicated negligence is within the scope of the defendant's duty to the plaintiff. Direct evidence of negligence by the defendant, however, is not always available. For example, there may have been no witnesses to the negligent conduct and other evidence may have been destroyed. Therefore, two doctrines have been adopted by courts to aid plaintiffs in establishing negligence claims: res ipsa loquitur and negligence per se. Escola .v. Coca Cola.A waitress was injured when a bottle of Cola that she was removing from a case exploded in her hand. From the facts (1) bottled soft drinks ordinarily do not spontaneously explode and (2) the bottles had been sitting in a case, undisturbed, in the restaurant for approximately 36 hours before the plaintiff simply removed the bottle from the case, the jury reasonably inferred that the defendant's negligence in the filling of the bottle resulted in tits explosion. The plaintiff therefore recovered damages without direct proof of the defendant's negligence. Plaintiffs in numerous accident cases have subsequently ed the doctrine where there has been no direct evidence of negligence. The defendant's best response to this doctrine is to demonstrate other possible causes of the accident. *Negligence per se* Literally, "negligence in or of if itself" applies to cases in which the *defendant has violated a statue* enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs. *The plaintiff doesn't have to show that a reasonable person would exercise a certain duty of care toward the plaintiff. Instead, the plaintiff can offer evidence of the defendant's violation of the statue to establish proof of the negligence. * A doctrine that allows a judge or jury to infer duty and breach of duty from the fact that a defendant *violated a statue* that was designed to prevent the type of harm that the plantiff incurred. ex. Ohio passes a statue prohibiting the sale of alcohol to minors, and a minor runs a red light and kills two pedestrians while driving under the influence of alcohol sold to him illegally, the liquor store's violation of the statue prohibiting the sale of alcohol to minors establishes negligence per se on the part of the store. The families of the pedestrians do not need to establish that a reasonable person would have a duty not to sell alcohol to a minor. *Danger invites rescue* Some states have established other doctrines or statues to aid plaintiff's in negligence suits. For example, suppose an airplane taxiing at Reagan National airport in the winter runs off the runway and into the Potomac River due to the negligence of the airline. Some bystanders observe the crash and jump into the water to rescue the crash survivors. *If any of the bystanders are injured while attempting to rescue the crash survivors, may courts will hold the airline liable for their injuries under what is known as the danger invites rescue doctrine.* *Dram Shop Acts* allows bartenders and bar owners to be held liable for injuries caused by individuals who become intoxicated at the bar. Other states have passed laws that hold hosts liable for injuries caused by individuals who become intoxicated at the hosts' home.

Chapter 5 Cases

*United States V Lopez* *<-prof directly mentioned in email.* Know what that case stands for and the court's decision. -case marked another sig change in the Supreme Court's interpretation of the commerce clause. In Lopez, the Court ruled that Congress had exceeded its commerce clause authority when it passed the Gun-Free School Zone Act. a law banning the possesssion on guns within 1,000 ft of any school. In its ruling, the Court said that Congress could not regulate in an area that had "nothing to do with commerce, or any sort of economic enterprise." *Central Hudson Gas* case and its holding. *<- prof directly mentioned in email.* Not all corporate speech is political speech. *Commercial speech is speech that conveys info related to the sale of goods and services. Courts analyze gov restrictions on commercial speech according to a four-part test established in *Central Hudson Gas & Electric Corp. v. Public Service Commission of New York*. Didn't find more in book, so online, The case presented the question whether a regulation of the New York Public Service Commission violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility. Public Service Commission of New York, a public utilities commission, required electric companies to ban any language from their current marketing that promoted the use of electricity, trying to encourage conservation to extend their fuel resources during the crisis. The Commission, taking in all comments, decided to continue the ban. The case, heard in trial court, at the New York Supreme Court, and at the New York Court of Appeals, found for the Commission, agreeing that the Commission's interest in conservation goals outweighed the commercial speech rights of Central Hudson. The case was petitioned to the Supreme Court. The Court ruled in a 8-1 decision that the Commission's policy violated the First and Fourteenth Amendments, and reversed the judgement of the lower courts. To make their argument, the Court established a four-step analysis for commercial speech to the Commission's arguments in support of its ban on promotional advertising. 1. Is the expression protected by the First Amendment? For speech to come within that provision, it must concern lawful activity and not be misleading. 2. Is the asserted governmental interest substantial? 3. Does the regulation directly advance the governmental interest asserted? 4. Is the regulation more extensive than is necessary to serve that interest? -There must be a "reasonable fit" between the government's ends and the means for achieving those ends. *Marbury v. Madison* Although the Constitution does not explicitly allow courts to review legislative and executive actions to determine whether they are constitutional, early common law established this process, which is known as *Judicial review*. In the landmark 1803 U.S Supreme Court case Marbury v. Madison, Chief justice John Marshall wrote for the majority: If a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case [conforms] to the law, disregarding the constitution: or [conforms] to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. *NLRB v Jones & Laughlin Steel Corp*. was a turning point in the Supreme Court's interpretation of the commerce clause. In that case, the Court ruled that Congress could regulate labor relations at a manufacturing plant because a work stoppage at the plant would seriously affect interstate commerce. US Supreme Court case *Home Building & Loan Association v. Blaisdell*, HB&LA challenged Minnesota's Mortgage Moratorium Act as a violation of the contract clause. The act, implemented temporarily during the Great Dep, authorized courts to extend the redemption periods of mortgages to delay foreclosures of mortgages on real estate. The Court ruled that the act's provisions were within the state's police power to protect its citizens and did not violate the contract clause. Although the act impaired contractual obligations between lenders and borrowers, the Court held that courts must balance even substantial contractual impairments against states' interest in protecting the welfare of their citizens. In *Citizens United v. Federal Election Commission* the court described corporations not as the "creatures of the law" that some previous courts had considered them, but rather as "associations of citizens" deserving the same free speech rights as individuals. The US Supreme Court struck down as unconstitutional federal campaign financing legislation that had prohibited corps and unions from spending money to elect or defeat candidates for Congress or the White House. Commercial speech is broader than just ads, for ex, *Bad Frog Brewery v. New York Liquor Authority*, the speech at issue was a label prominently featuring a drawing of a frog holding up its middle finger and slogan as "The beer so good... it's bad." The court of appeals applied the Central Hudson test to uphold the right of Bad Frog to use its label. The First Amendment right to free speech is not absolute. In the case *Chaplinsky v New Hampshire*, the US Supreme Court held: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and Obscene, the profane, the libelous, and the insulting or fighting words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. In *Miller v Cali* the US Supreme Court established a 3 part standard to determine whether speech is obscene. 1. Would the average person, applying contemporary community standards, find that the speech, taken as a whole, appeals to the prurient (market by or arousing an immoderate or unwholesome interest or desire) interest? 2. Does the speech depict or describe, in a patently offensive way, sexual conduct specifically defined by law? 3. Does the speech, taken as a whole, lack serious literary, artistic, political, or scientific value? In *Chaplinsky v New Hampshire*, a man protesting the gov called the city marshall a "damned racketeer" and a "damned Fascist" (fighting words). The city arrested him for violating a statue prohibiting the use of offensive, derisive, or annoying words toward another in a public place. The US Sipreme Court held: "The English language has a number of words and expressions which by general consent are "fighting words" when said without a disarming smile... Such words, as ordinary men know, are likely to cause a fight." Can cause a breach of the peace and the Court determined that the First Amendment did not protect the man's speech. Many universities have banned verbal abuse and verbal harassment. State and federal appellate courts have struck down almost every one of these hate speech codes and codes of conduct that have been challenged, usually on grounds of being overbroad or vague. *In Lemon v Kurtzman* the US Supreme Court codified the following three tests to determine whether a particular gov statue violates the establishment clause: 1. Does the statue have a secular legislative purpose? 2. Does the statue's principle or primary effect either advance or inhibit religion? 3. Does the statue foster an excessive gov entanglement with religion? -A state statue will not violate the establishment clause (gov shall make no law respecting an establishment of religion) if it has a secular legal purpose, has a primary effect of neither advancing nor inhibiting religion, and does not foster an excessive gov entanglement with religion. Tucker, signed office memos with his name and SOTLJC. His superviser prohibited all displays of religios symbols in the workplace. Tucker challenged the suspension on grounds that the rules interfered with his free exercise of religion, the appellate court agreed. *Burnwell v Hobby Lobby*, Supreme Court held that closelyheld corps have the right to free exercise of religion, and therefore, closelyheld, for profit corps are not required to provide certain forms of birth control mandated the the Affordable Care Act. *Fl v Jardines* the high court held that bringing a drug sniffing dog onto someone's front porch without a warrant does violate the Fourt Amendment's protection against warrantless searches. In *Fl v Harris*, an officer made a routine traffic stop of a truck, and when he walked up to the vehicle with the drug sniffing dog, through its behavior, indicated the presence of illegal drugs in the door of the truck. The officer treated the dog's behavior as giving him probable cause to go ahead and search, where he found drugs. In this case, the high court upheld the search. *Braswell v United States* the Court distinguished between the rights of corporate record custodians and sole proprietors. Braswell argued that the subpoena violated his 5th amendment privilege against self-incrimination. The court denied his claim, subpoenaed business records are not privileged. Would have violated his privilege against self-incrimination if his business had been a sole proprietorship. *Kelo v City of New London* the US Supreme Court case that addressed the issue of what constitutes "public use." The Pfizer pharmaceutical comp decided to build a new research facility in Connecticut. Before the city could move forward with development, it had to first use its power of eminent domain to obtain the privately held land. The owners filed suit. The US Supreme Court found that the use of eminent domain for the purpose of economic development was constitutional. The citizens had to give up their land. *Lucas v South Carolina Coastal Commission* dispute between a beachfront-property owner and the states of South Carolina over a law prohibiting permanent construction on any eroding beach. He had bought the lots before the passage of the law. He had not begun construction. He challenged the law as constituting a taking without just compensation. The state agreed with Lucas that the regulation denied him full value of his property and thus constituted a taking, it awarded him 1.2 mil in damages. The South Caroline Supreme Court disagreed and overturned the lower court's decision. He appealed to the US Supreme Court, which reverse the state supreme court, holding that a state regulation that deprives a private property owner of all economically beneficial uses of property constitutes a taking of private property for which the 5th amend's taking clause requires payment. This total deprivation of the value of the property is referred to as a *regulatory taking*. *Griswold v Connecticut* the supreme court ruled that a Connecticut law prohibiting the use of contraceptives was unconstitutional because it violated individuals' right to privacy. *Brown v Board of Edu* the us supreme court ruled that the classification scheme used to racially segregate public schools violated the equal protection clause.

Courts of appellate Jurisdiction or Appellate Courts

have the power to review previous judicial decisions to determine whether trial courts erred in their decisions

Supremacy Clause

located in Article VI of the constitution, provides that the Constitution, laws, and treaties of the United States constitute the supreme law of the land, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

CHAPTER 8 Tort

(from a French word meaning "wrong") is a wrong or injury to another. A tort is a civil wrong that gives the injured party the right to bring a lawsuit against the wrongdoer to recover compensation for injuries. Purposes of Tort Law: 1. To compensate innocent persons who are injured.<- primary objective 2. To prevent private retaliation by injured parties. 3. To reinforce a vision of a just society. 4. To deter future wrongs. Types of Torts: 1. Intentional Tort: The defendant acts with the intention of engaging in a specific act that ultimately results in an injury. 2. Negligent Tort: The defendant fails to act as a reasonable person would act, and therefore subjects other people to an unreasonable risk of harm. 3. Strict-liability tort: The defendant takes an action that is inherently dangerous and cannot be undertaken safely. Class Notes- Elements of a Tort (these are facts that have to be proven to win) -Contract -Breach -Damages There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.

Intentional torts against persons

*Assault* occurs when one person places another in reasonable fear or apprehension of an immediate, offensive bodily contact. A person may be in apprehension of physical harm but be too courageous to be afraid. An assault occurs if apprehension exists, regardless of fear. The test for assault is reasonable apprehension. Likewise, if someone called you on the telephone and threatened to come over and break your nose, this is not an assault because there is no question of immediate bodily harm. Legal principle: An assault occurs when a person is placed in fear or apprehension of an offensive bodily contact, if the contact actually occurs, it constitutes a battery. *Battery* An assault is often, but not always, followed by a battery, an intentional, unwanted, offensive bodily contact. But if you both happened to be getting out of your cars at the same time and bumped into each other, no battery has occurred because there was no intentional bodily contact. *consent* mitigates the element of unwanted. A person cannot commit a battery if the other party consented to the contact. *self-defense* responding to the force of another with comparable force to defend yourself. the most common defense. You cannot respond with a greater force than is being used against you. *defense of others* is just what it sounds like. The degree of force your brother can use in defending you is limited to the degree of force you could use yourself. *defense of property* you can use *reasonable force* to defend your property from an intruder

writ of certiorari

*writs* To file an appeal to the US Supreme Court, a party files a petition asking the Court to issue a writ of certiorary, an order to the lower court to send to the Supreme Court the record of the case. The Court issues very few writs. Appeal to the US Supreme Court. Every year thousands of individuals file appeals with the US Supreme court. The Court hears on average only 80 to 90 cases each year. A Supreme Court order, issued after the Court decides to hear an appeal, mandating that the lower court send to the Supreme Court the record of the appealed case. The justicies review petitions and issue a writ only when at least four justices vote to hear the case (the rule of four). The court is most likely to issue a writ in four instances: (1) The case presents a substantial federal question that the Supreme Court has not yet addressed. (2) Multiple circuit courts of appeal have decided the issue of the case in different ways. (3) A state court of last resort has ruled that a federal law is invalid or has upheld a state law that may violate federal law. (4) a federal court has ruled that an act of Congress is unconstitutional. If the Supreme Court does not issue a writ of certiorari, the lower court's decision stands.

Full Faith and Credit Clause

Article IV, Section 1 of the United States Constitution, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." This provision required that courts in all states uphold contracts and public acts established in other states. For example, this clause protects wills, marriage and divorce decrees, and judgement in civil courts.

Federal Preemption

A principle asserting the supremacy of federal legislation over state legislation when both pertain to the same subject matter. aka field preemption.

Dormant Commerce Clause

A restriction on states' authority that is implied in the commerce clause of the U.S. Constitution: The power given to Congress to enact legislation that affects interstate commerce in effect prohibits a state from passing legislation that improperly burdens interstate commerce. In other words, *restriction on states' authority to pass laws that substantially affect interstate commerce.* establishes the sovereignty of federal law. Courts generally presume that laws passed in accordance with states' police power are valid. Like the city of Chicago passed an ordinance banning spray paint in the city as a means to reduce graffiti. Paint manufacturers challenged the legislation as a violation of the dormant commerce clause but the US court of appeals upheld the legislation. The legislation did not treat paint from out of state manufacturers any differently than paint from in state manufacturers. Decreases graffiti and it is within the states' police power to determine that graffiti is not good for the public welfare.

Intermediate Scrutiny

A standard of review under which a law must be necessary to achieve a substantial, or important, government interest and it must be narrowly tailored to that interest.

mediation

A type of intensive negotiation in which disputing parties select a neutral party to help facilitate communication and suggest ways for the parties to solve their dispute. Trick to remember- (medi) there's someone in the middle. neutral 3rd party usually has expertise in the area of the dispute. -allows parties to preserve relationship. -potential for creative solutions. -high level of autonomy. (freedom from external control) -but not always equal -hopeless party may enter in bad faith to draw out dispute From class notes- Neutral third party A judge can make a decision, mediators can't. Are often retired judges, attorneys. Attorneys summary in advance. or carrier pigeon usually don't settle if done this way. can take 15 minutes or all day long.

Contract Clause

Article I, Section 9, contains the contract clause, which states that government may not pass any "Law impairing the Obligation of Contracts." In application, courts interpret this clause to mean that no law can be passed that will unreasonably interfere with existing contracts.

The Fifth Amendment

Protects individuals in several important ways. It protects against self-incrimination, meaning that in a criminal case, the defendant does not have to testify in court as a witness against herself or himself. The Fifth Amendment also protects against double jeopardy. Thus, government cannot try a person more than once for the same crime. It also contains the important protections of the due process clause.

Pleading stage

The first formal stage of a lawsuit is the pleading stage. The plaintiff's attorney initiates a lawsuit by filing a complaint in the appropriate court.

Informal Negotiations

The initial attempt to resolve a business dispute is usually informal: a discussion or negotiation among the parties to try to find a solution.

Business Duties

Business duties- duty to warn, duty to maintain, duty to safe work conditions. Businesses should warn customers about risks they may encounter on business property. Some risk, however, are obvious, and businesses need not warn customers about them. The courts generally hold that businesses have a duty of care to protect their customers against foreseeable risks about which the owner knew or reasonably should have known. Businesses and corporations are also obligated to provide products to consumers that are safe from foreseeable harm and injury. Contractual duty of care and common law duty of care. Case in book: the business's attempt to warn customers by marking the lumber with yellow construction tape was insufficient to avoid the determination of negligence; the woman was awarded $19,366 in damages. Malpractice Cases Professionals have more training than ordinary people. Thus, when professionals are serving in their professional capacity, courts generally hold that they have a higher duty of care to clients than does the ordinary person. A professional cannot defend against negligence suit by claiming ignorance of generally accepted principles in her or his field of expertise. Clients who feel that they have suffered damages as a result of professional's breach of her duty of care can bring a negligence case against her. These actions are referred to as malpractice cases.

The Fourteenth Amendment

Equal Protection. contains the equal protection clause, which prevents states from denying "the equal protection of the laws" to any citizens.

Defenses to Negligence

Defendants can successfully rebut negligence claims with contributory negligence, comparative negligence, assumption of the risk, and other special negligence defenses. *Contributory Negligence* a defense once available in all states but replaced today in some states by the defense of comparative negligence, *applies in cases where both the defendant and the plaintiff were both negligent.* The defendant must prove that (1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm and (2) the plaintiff's failure was a contributing cause to the plaintiff's injury. Some defense lawyers argue that if a plaintiff involved in a car accident failed to wear her seat belt, that failure constitutes contributory negligence because her actions contributed to her injuries. *If the defendant successfully proves contributory negligence, no matter how slight the plaintiff's negligence, the plaintiff will be denied any recovery of damages.* Because this defense seems unfair, many states have adopted last clear chance doctrine. *Last Clear Chance Doctrine* Allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff. ex. suppose that Samantha and Nicole, in their cars, are facing each other while stopped at a red light. The light turns green, and Nicole starts to turn left at the intersection. Samantha sees Nicole start to turn, but she still continues to travel straight through the intersection and crashed into Nicole's car. Although Samantha had the right of way at the intersection, she could have avoided hitting Nicole's car by braking or swerving. Thus, according to the last clear chance doctrine, Nicole could recover damages. Legal Principle: If the court finds that (1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm and (2) the plaintiff's failure was a contributing cause of the plaintiff's injury, the defendant will not be liable for the plaintiff's injuries unless the plaintiff can prove that the defendant had the last opportunity to avoid the accident. this doctrine however leaves many situations in which an extremely careless defendant can cause a great deal of harm to a plaintiff who is barred from recovery due to minimal contributory negligence. *Pure comparative negligence (defense)* the court determines the percentage of fault of the defendant. the defendant is then liable for that percentage of the plaintiff's damages. To remember- pure, p for percentage, liable for that percentage. *Modified Comparative Negligence* courts calculate damages according to modified comparative negligence in the same manner, except that the defendant must be more than 50% at fault before the plaintiff can recover. To remember- Modified, M for More than 50% at fault. *Assumption of the risk* another defense available to defendants facing negligence claims. to use this defense successfully, a defendant must prove that the plaintiff voluntarily and unreasonable encountered the risk of the actual harm the defendant caused. In other words, the plaintiff willingly assumed as a risk the harm she suffered. *Express assumption of the risk* occurs when the plaintiff *expressly agrees* (usually in a written contract) to assume the risk posed by the defendant's behavior. *Implied assumption of the risk* In contrast, implied assumption of the risk means that the plaintiff *implicitly* (not directly expressed) assumed a known risk. *Legal Principle* *If the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused, the defendant may raise the defense of assumption of the risk to avoid liability.*

Due Process Clause

For business people and corporations, the Fifth Amendment's due process clause provides extensive protection. This clause states that government cannot deprive a person of life, liberty, or property without due process of law. A clause in the Fifth Amendment of the US Constitution which provides that the government cannot deprive an individual of life, liberty, or property without a fair and just hearing. The due process clause guarantees two types of due process: procedural and substantive. *Procedural due process* requires that the government use *fair procedures* when taking the life, liberty, or property of an individual or corporation. *Substantive due process* refers to the *basic fairness of laws* that may deprive an individual of her life, liberty, or property. To satisfy the substantive due process requirement, government must have a proper purpose for enacting laws that restrict individuals' liberty or the use of their property. Courts have upheld minimum-wage laws, rent control laws, baking regulations, environmental laws, and regulations prohibiting unfair trade practices according to the rational-basis test. Courts uphold most government regulations according to this rational-basis test.

The First Amendment

Freedom of religion, press, speech, and peaceable assembly. The first amendment guarantees freedom of speech, including gestures and other forms of expression and of the press. It prohibits abridgment of the rights to assemble peacefully and to petition the government for redress of grievances. Finally, it prohibits the government from aiding the establishment of religion and from interfering with the free exercise of religion. Are not absolute, like someone cannot yell "fire" in a crowded theater. protections also apply to corporations.

From class notes

From class notes- Federalists and antifederalists (about 13 states) Federalists - strong fed gov, control through gov, not much through states. Didn't want bill of rights. Antifederalists wanted the bill of rights in constitution. Passed, had to be ratified by states. (9 signatures from states). Only 3 on the exam is negotiation, mediation, and arbitration. END CHAPTER 4

Request to produce documents

In a lawsuit, a discovery tool that forces the opposing party to produce certain information unless it is privileged or irrelevant to the case.

Notes

Level of intent From Class Notes- -Felony- 1 yr and 1 day, lose some of your civil rights when convicted of felony. More than 1 yr or death. Lose right to vote, carry a firearm (2nd amendment), jury service, can't get some jobs. -Misdemeanor 1 yr or less -Petty offenses- decriminalized, but a violation. (citation) Elements Class Notes- Actus Reus Mens Rea -purposefully (specific wrongful behavior for specific wrongful results) -knowingly (plan? intent?) (knows it's wrongful but didn't confirm if it was a crime or not. Still be knowing). -reckless (plan? intent?) -negligent Corporate Liability From Class Notes- when business people are going to be liable for crimes. can hold corps liable for crimes today, fines, revoke license, business shut down. Impute liability- Corp -> Owners. gov, state themselves had to get at the people themselves because they could open other business and continue. 1) acting within scope of employment. 2) acting with purpose of benefiting the corp. 3) Act was imputed to the corp. synonyms of Impute: attribute to, ascribe to, assign to, credit to. END CHAPTER 7

negotiation

Many business manager make frequent use of it. A bargaining process in which disputing parties interact informally, either with or without lawyers, to attempt to resolve their dispute. A neutral third party, such as a judge or jury is not involved. Some courts require this before they can bring their dispute to trial. approaches: adversarial or problem solving. Usually occurs in every case before a more formal dispute resolution method is chosen, so not considered an alternative to litigation. (1)a bargaining process in which disputing parties interact informally to attempt to resolve their dispute. (2) The transfer of the rights to a negotiable instrument from one party to another. From class notes- informal, out to litigation, between parties, dispute will lead to formal document, payment. Very cost effective. Can result in settlement or deposition.

Negligent Torts

Occur when the defendant acts in a way that subjects other people to an unreasonable risk of harm. In other words, the defendant is careless to someone else's detriment.

Strict-Liability Torts

Occur when the defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes. class example- like a blasting company blasts a boulder and someone gets hurt, injured party shouldn't have to pay for injury.

Plaintiff

One who begins a lawsuit A court acquires in personam jurisdiction over a person (the plaintiff) when she files a lawsuit with the court.

From Class Notes-

Original -> The trial court seeks truth. Where it all began. Win, lose, or settle. -Subject matter jurisdiction (amount in controversy) -In Personam (power over the people) "parties" could be business. Service of process - Needed to proceed with lawsuit. on the defendant (get served), a registered agent gets served when serving a company. Serve a company in 3 different locations. -Geographic area in which they conduct business. -The state of their incorporation. -The location of the main offices. Long arm statue- "minimum contacts" - know what this is. "fairness" -tort, doing business at location, owning some property there. Long-Arm Statute. A state law that allows the state to exercise jurisdiction over an out-of-state defendant, provided that the prospective defendant has sufficient minimum contacts with the forum state. Jurisdiction over an out-of-state defendant is referred to as extraterritorial in personam jurisdiction. -Minimum contacts- doing business online down there. <- yes -Interactive website (exchange of info). -No minimum contact- information, no business transaction on website. Federal -District for S.D -> -Circuit courts of Appeals -> -US Supreme Court State -Trial courts - small claims, county courts, circuits. -> Intermediate court of Appeal -> Courts of last resort (Florida Supreme court). Legal right to bring a lawsuit. 1) standing 2) Ripness 3) case or controversy Pretrial stage: (service of process on defendant) -File a complaint with clerk of the court. -Clerk of court issues you a summons. -Then court has jurisdiction on defendant. -defendant serves you back with an answer. -> admit or deny. Affirmative defense- asserting new facts, yes, I did it but it was 6 years ago, but if person has a good excuse and suit proceeds. Reply-Excuse Discovery Stage: -Parties gather info from each other through discovery. -Promotes settlement and less chances of going to court. - Interrogatories- ask other party simple questions. Sworn testimony by way of writing. -Request to produce documents. -Deposition- Attorneys examine witness under court. -a motion for summary judgement- everything is in file, we don't need to go to trial. -If denied, go to trial. Plaintiff, defendant. END OF CHAPTER 3

Strict Liability

Strict Liability is liability without fault. The law holds an individual liable without fault when the activity in which she engages satisfies three conditions: (1) It involves a risk of serious harm to people or property; (2) it is so inherently dangerous that it cannot ever be safely undertaken; and (3) it is not usually performed in the immediate community. Instead of banning these activities, the law allows people to engage in such activities but holds them liable for all resulting harm. Inherently dangerous activities include dynamite blasting in a populated area and keeping animals that have not been domesticated. If an animal has shown a "vicious propensity," strict liability applies and the owner of the animal is responsible for any injuries suffered in an attack by the animal. If an individual keeps an animal that has not shown vicious propensity, he has a duty to warn and protect individuals who come into contact with the animal. strict liability has had an enormous impact on cases involving unreasonably dangerous products.

Strict Scrutiny

The most exacting standard of review used by the courts in determining the constitutionality of a statute; requires a compelling government interest and the least restrictive means of attaining that objective. Suspect classifications include classifications based on race, national origin, and citizenship. Courts uphold suspect classifications only if they are necessary to promote a compelling state interest. Is a law constitutional? Strict Scrutiny is the most challenging test, *the gov has to prove that the law was necessary to achieve a compelling purpose and that the methods used in the law are the least restrictive way to achieve the purpose.*

Freedom of Religion

The First Amendment contains two provisions that protect citizens' freedom of religion. The establishment clause- maintains that government "shall make no law respecting an establishment of religion." Test to determine whether a particular government statues violates the establishment clause: 1. Does the statue have a secular legislative purpose? 2.. Does the statue's principal or primary effect either advance or inhibit religion? 3. Does the statue foster an excessive government entanglement with religion? A statue statue will not violate the establishment clause if it has a secular legal purpose, has a primary effect of neither advancing nor inhibiting religion, and does not foster an excessive government entanglement with religion. Pg 113 The Free-exercise clause states that government cannot make a law "prohibiting the free exercise" of religion.

Judicial Review

The power of a court to review legislative and executive actions, such as a law or an official act of a government employee or agent, to determine whether they are constitutional.

Discovery

The pretrial phase in a lawsuit during which each party requests relevant documents and other evidence from the other side in an attempt to "discover" pertinent facts and to avoid any surprises in the courtroom during the trial. Discovery tools include *requests for admissions, interrogatories, depositions, requests for inspection, and document production requests.*

CHAPTER 5 Federalism

The US constitution establishes a system of government based on the principle of federalism, according to which the authority to govern in divided between federal and state governments. A system of government in which power is divided between a central authority and constituent political units. Legal Principle- Under the current system of checks and balances, each branch of government has its own distinct responsibilities, and each one has its powers checked by the other two branches to ensure that no branch has enough unchecked power to take control of the government. The Constitution also establishes a system of Checks and balances. Each branch's powers keep the other branches from dominating the gov. From Class Notes- Federalism - system of gov powers are spread out so one part can't take charge over country. Powers are in the constitution, if not, they're reserved to the states (states regulate state laws). separation of powers. 3 separate but equal. Legislative -> creates laws -> sometimes exceeds their powers (creates laws they can't). Executive -> executes the law. Enforces. Judicial -> Interprets law, power to enter judgement. Judicial review of creation of laws. Checks and balances built into constitution, prevents a branch from becoming too powerful. Legislative branch enacts law but president can veto it. needs 2/3rds vote of congress to override veto. Supreme court can say its unconstitutional. Legislative branch can then amend the law. *Supremacy cause*: supreme law of the land. States can still make law (the ones reserved for the states). *Federal preemptive* - exclusive regulation goes to federal gov, states can't regulate. *Commerce clause* - courts expanded and contracted, narrow and protected, got bigger and bigger. Then they got too excessive with their laws. Some laws need to be left to the state.

Legal Principle

The court in which a case is first heard is called the court of original jurisdiction, and the court to which a decision made by that court is appealed is called the court of appellate jurisdiction.

CHAPTER 7 Basics of Crime What is it? What have to prove generally? What burden does the state have?

The purpose of criminal law is to punish an offender for causing harm to public health, safety, or morals. To punish an individual for criminal behavior the government must demonstrate the two elements of a crime: 1. Wrongful behavior, that is *actus reus* or a guilty act. 2. Wrongful state of mind, also known as *mens rea* or a guilty mind. My trick to remembering- Actus Reus - wrong behavior is ACTing bad. Mens rea- wrongful state of mind is when you're thinking about Men all the time xD. The government thus must show that a defendant committed a prohibited act with a wrongful intent. To prove actus reus, the gov must establish the nonmental elements of the crime and demonstrate that a prohibited act or consequence resulted because of the defendant's actions. To prove the second element mens rea, the gov must prove that the defendant acted with purpose, knowledge and recklessness, or negligence, depending on which of these states of mind is required b the law defining the relevant offence. The defendant's type of wrongful state of mind helps determine the seriousness of the punishment. *purposefully* commit a crime by *engaging* in a specific wrongful behavior to bring about a specific wrongful result. *knowingly* commit a wrongful act if the person *knows* the act is wrongful or believes so yet does nothing to confirm or disconfirm this belief. *reckless* if a crime act occurs when the individual consciously *ignores substantial risk*. *negligent* if he or she *does not meet the standard of care a reasonable person would* use under the circumstances.

Embezzlement

The wrongful conversion of another's property by one lawfully in possession of it. Example, Kate gives Devin, her attorney, $5,000 to put in escrow, an account where Devin will have access to the money although it is not his to use as he pleases. Devin takes the money out and uses it to gamble, fixing the records to cover himself. Check Kiting described above is embezzlement.

From Class Notes

There are some exceptions to the 4th Amendment. Some you do, some not. depends on... -Expectation of privacy -Police need no search warrant if you have no expectation of privacy, like being in public. 5th Amendment insures due process. Gov can't take an individual's life, liberty, or property without due process of law. 2 types. Procedural due process - fair process. gov must give fair notice. Substantive- the fairness of law. *Until the 14th amendment was passed, states could do as they wanted because Bill of Rights was only applied to fed gov.* Bill of rights -> against gov. Protection from fed gov. Corporations -> "persons", "citizens" Every state has to adhere to the 14th amendment. Can't infringe against our rights. 3 types of speech -Political speech (most protected, fully protected) -Unprotected speech (hate, fighting words, etc) -Commercial Speech (maybe protected) depends These are not absolute, there are restrictions. time, place, manner. like locking traffic in a public demonstration. Can enforce restrictions on it. Recent Supreme Court ruling on cellphones. In a major statement on privacy in the digital age, the Supreme Court ruled on Friday that the government generally needs a warrant to collect troves of location data about the customers of cellphone companies. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information," Chief Justice John G. Roberts Jr. wrote for the majority. The 5-to-4 ruling will protect "deeply revealing" records associated with 400 million devices, the chief justice wrote. The decision made exceptions for emergencies like bomb threats and child abductions. "Such exigencies," he wrote, "include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm or prevent the imminent destruction of evidence." In general, though, the authorities must now seek a warrant for cell tower location information and, the logic of the decision suggests, other kinds of digital data that provide a detailed look at a person's private life. END CHAPTER 5

CHAPTER 9 Elements that must be proven.

To win a negligence case, the plaintiff must prove *four elements*: 1. *Duty*: The standard of care a reasonable person owes another. 2. *Breach of duty*: Failure to live up to the standard of care. 3. *Causation*: (a) Actual cause (cause in fact)-the determination that the plaintiff's harm was a direct result of the defendant's breach of duty; and (b) proximate cause (legal cause)-the extent to which, as a matter of policy, the defendant will be held liable for the consequences of his actions. 4. *Damages*: A compensable loss suffered by the plaintiff. The plaintiff has the burden of proving all four elements of a negligence case. Duty The standard of care a reasonable person owes to another. The plaintiff must first establish that the defendant owes a duty to the plaintiff. Reasonable Person Standard is a measurement of the way members of society expect an individual to act in a given situation. to determine the defendant's duty of care, the judge or jury must determine the degree of care and skill that a reasonable person would exercise under similar circumstances. 4 questions 1) How likely was it that the harm would occur? 2) How serious was the harm? 3) How socially beneficial was the defendant's conduct that posed the risk of harm? 4) What costs would have been necessary to reduce the risk of harm? Breach of Duty Once the plaintiff has established that the defendant owes her a duty of care, she must prove that the defendant's conduct violated that duty. This violation is called a breach of duty. ex. a driver owes the other passengers in his car a duty of care to obey traffic signs. If he fails to stop at a stop sign, he has violated his duty to follow traffic signs and has therefore breached his duty of care. *Causation* is the third element of a successful negligence claim, and it has two separate elements: *actual cause and proximate cause.* The plaintiff must prove both elements of causation to be able to recover damages. *Actual Cause* the first element, also known as cause in fact, is the determination that the defendant's breach of duty resulted directly in the plaintiff's injury. the courts commonly determine whether a breach of duty actually caused the plaintiff's injury by asking whether the plaintiff would have been injured if the defendant had fulfilled his or her duty. If the answer is no, then the actual cause of the plaintiff's injury was the defendant's breach. Actual cause is sometimes referred to as "but for" causation because the plaintiff argues that the damages she suffered would not have occurred but for (except because of) the actions of the defendant. Ex. Curtis argued that but for the flawed construction and maintenance of the wooden dock, she would not have injured her tibia. *Proximate Cause* aka legal cause refers to the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions. *Proximate cause is said to exist only when both the plaintiff and the plaintiff's damages were reasonably foreseeable at the time the defendant breached his duty to the plaintiff.* Thus, if the defendant could not reasonably foresee the damages that the plaintiff suffered as a result of his action, the plaintiff's negligence claim will not be sustained because it lacks the element of proximate causation. Ex. if a defective tire on a vehicle blows out, it is foreseeable that the driver may lose control and hit a pedestrian. It is not foreseeable, however, that the pedestrian may be a scientist carrying a briefcase full of chemicals that may explode on impact, causing a third-floor window to shatter and injuring an accountant at his desk. In most states, the accountant would not succeed if he sued the tire manufacturer for negligence. The tire failure is not considered a proximate cause of the accountant's injury because the contents of the pedestrian's briefcase were highly unusual. The pedestrian, however, would be eligible to recover damages from the tire manufacturer because hitting a pedestrian is a foreseeable consequences of tire failure. Thus, the defect in the tire is a proximate cause of the pedestrian's injury. Courts in a few states do not distinguish actual cause from proximate cause. In these states, if the defendant's action constitutes an actual cause, it is also considered the proximate cause. Therefore, in these few states, both the pedestrian-scientist and the third-flood accountant would be able to recover damages from the tire manufacturer in the previous example. *Legal principle- Proximate cause is defined in the majority of states as foreseeability of both the plaintiff and his or her injury, whereas in the minority of states proximate cause is the same as actual cause.* Damages are the final required element of a negligence action. The plaintiff must have sustained compensable injury as a result of the defendant's actions. Because the purpose of tort law is to compensate individuals who suffer injuries as a result of another's action or inaction, a person cannot bring an action in negligence seeking only nominal damages. Rather, *a person must seek compensatory damages.* Compensatory damages damages intended to reimburse a plaintiff for her or his losses. Punitive damages aka exemplary damages in typical negligence cases, courts rarely award punitive damages, which are imposed to punish the offender and deter others from committing similar offenses. Instead, courts usually award punitive damages in cases in which the offender has committed gross negligence. Gross Negligence an action committed with extreme reckless disregard for the property or life of another person.

Right of removal

When a state falls under concurrent jurisdiction, the plaintiff initially chooses which court will hear the case by filing in whichever court system the plaintiff wishes the case to be hear in. If a plaintiff files the case in a state court, however, the defendant has a right of removal. This entitles the defendant to transfer the case to the federal court system. Notes- I remember that it's because states usually sides more with the plaintiff which is resident of the state than with the defendant which is out of state. But some orgs actually encourage companies to take a state's court system into account, their laws.

binding arbitration clause

a contract provision mandating that all disputes arising under the contract must be settled by arbitration

affirmative defense

a defendant uses an affirmative defense when her or his answer admits that the facts contained in the complaint are accurate but also includes additional facts that justify the defendant's actions and provide a legally sound reason to deny relief to the plaintiff. example. man admits that he hit woman in self defense because she pointed a gun at him. must raise in his answer. If he fails to raise it in the answer, the judge will likely not allow him to raise it during the trial.

Extortion

also known as blackmail is the making of threats for the purpose of obtaining money or property.

Defendant

an individual, company, or institution sued or accused in a court of law. The court acquires jurisdiction over the person the plaintiff is suing (the defendant) when it gives him a copy of the complaint and a summons.

Ponzi Scheme

an investment swindle in which high profits are promised from fictitious sources and early investors are paid off with funds raised from later ones. Trick to remember- P for pyramid scheme.

Personal service

an officer of the court hands the summons and complaint to the defendant traditionally, courts use personal service. recently however, courts have employed other methods of service, including residential service, in which a court representative leaves the summons and complaint with a responsible adult at the defendant's home, and service by certified or ordinary mail. There has even been one case in which a court of appeals upheld service of process by email to be appropriate. If the defendant is a corp, courts generally serve either the president of the corp or an agent that the corp has appointed to receive service. Most states require that corps appoint an agent for service when they incorporate. Corps are subject to in personam jurisdiction in three locations: the state of their incorporation, the location of their main offices, and the geographic areas in which they conduct business.

Misdemeanors

are less serious crimes punishable by fines or imprisonment for less than one year.

Interrogatories

are written questions that one party sends to the other to answer under oath. Frequently, a request to admit certain facts accompanies interrogatories. A formal set of written questions that one party to a lawsuit asks the opposing party as part of the pretrial discovery process in order to clarify matters of evidence and help determine in advance what facts will be presented at any trial in the case. The questions must be answered in writing under oath or under penalty of perjury within a specified time. *Also called requests for further information.*

Concurrent Federal Jurisdiction

authority of federal or state courts to hear the same case, both have jurisdiction over a case. *covers two types of cases: federal question and diversity of citizenship cases.* *Federal Question cases require an interpretation of the United States Constitution, a federal statue, or a federal treaty.* For example, suppose a plaintiff alleges that a Florida campaign financing law violates his First Amendment free speech rights. Because this case raises a federal question, it falls under concurrent jurisdiction, and both state and federal courts have the power to hear it. A *diversity of citizenship* case must satisfy two conditions: *(1) The plaintiff(s) does (do) not reside in the same state as the defendant(s), and (2) the controversy concerns an amount in excess of $75,000.* Courts use the location of a party's residence to determine whether diversity of citizenship exists. Most federal court cases are based on diversity of citizenship. Legal Principle- Concurrent jurisdiction exists whenever there is a federal question or diversity of citizenship and at least $75,000 at issue.

Notes from class

by contract or by state - get awarded of attorneys fees. by state would include landlord statues. Some states give attorneys fees. Negligence is not one of them (get awarded attorney's fees). Nominal damage- jury might want you to win. Even if you get $1, you're the winning party. you might get attorneys fees. not tested on how much punitive damages. punitive damages- deter other, recklessness. compensatory damages- courts limit how far they go. To win a negligence case. 4 elements. 1. duty, 2. breach of duty. 3. caucasion. 4. damages. you have to prove your case. jury will determine reasonable or not reasonable. - duty to warn, to maintain. duty- farmers owed a duty contruct maintain property safe dock warning duty sign business duties, duty to warn, duty maintain, duty to safe work conditions. -don't have duty to warn when its open and oblivious. but should warn anyway, jury will determine whether. Don't win with a duty and a breach, need to show causation. breach of duty caused injury. causation- actual cause- "but for" their breach of duty would she have been injured? No. actual- "but for" cause in fact. proximate: where society says in some point we're going to draw line. where it's no longer foreseeable. -the throwing of a cig on dry grass is foreseeable that house is going to burn. -not liable for all 100 houses burning but just 2. Palsgraf v. long island railroad has acutal cause "but for" but not proximate cause. defendant's mind- foresee Plaintiff's doctrines- when evidence is missing plaintiff can't prove case. two doctrines have been adopted. res ipsa loquitur- an inference can infer from the defendants. actions, negligence was the cause of the harm. res ipsa have to be certain things you have to prove. permits jury to find evidence. defense has to prove they were not negligent. contributory negligence- plaintiff (one suing) is 1% at fault, they lose the case. comparative negligence- defendant responsible for portion. plaintiff as well. (portion fault between two parties). assumption of risk has to be with the nature of event. base ball game, then baseball. not hot dogs.

Police Power

consists of the residual powers retained by each state to safeguard the health and welfare of its citizenry. Typical exercises of a state's police power include state criminal laws, building codes, zoning laws, sanitation standards for restaurants, and regulations for the practice of medicine.

Long-arm statutes

enable the court to serve defendants outside the state as long as the defendant has sufficient minimum contacts within the state and it seems fair to assert long-arm jurisdiction over him or her. Courts have in personam jurisdiction only over persons within a specific geographic region. To alleviate this problem, most states have enacted long arm statues. Each state has its own minimum contact requirements, but most states statues hold that acts like committing a tort or doing business in the state are sufficient to allow the state to serve a defendant.

Trial Courts or Courts of Original Jurisdiction

have the power to hear and decide cases when they first enter the legal system. The parties present evidence and call witnesses to testify. aka courts of common pleas, county courts, and district courts.

Felonies

include serious crimes, such as murder, that are punishable by imprisonment for more than one year or death.

Defamation Another Intentional Tort

intentional publication (or communication to a 3rd party) of a false statement harmful to an individual's reputation. class notes- libel:written, also be oral if recorded because it's a permanent record. slander: oral remember s for spoken. special damages (prove and prove damages) slander per se (general, just prove and get money): statements that give you slander per se are -crime -disease (mostly venereal) -professional incompetent *Libel* If the defamation is published in a permanent form, such as in a magazine or newspaper, it is known as libel. TV and radio are also considered libel. *Slander* If the defamation is done orally, it is slander. *Slander per se* In most states, an exception to the requirement of special damages occurs if the defamation constitutes slander per se, statements so inherently harmful that general damages are presumed. slander per se generally includes claims that the plaintiff (1) has a loathsome, communicable disease (traditionally venereal disease or leprosy) (2) has committed a crime for which imprisonment is a possibility. (3) is professionally incompetent. (4) if a woman, is unchaste (although in most states today where this category is still recognized, it usually applies only to underage girls). Truth A person accused of defamation can raise two defenses: truth and privilege. Truth is frequently considered an absolute defense. That is, the defendant cannot be held liable for defamation, regardless of whether damages result, if the statement made was true. the I thought a statement was true is not a defense.

Summons

is a court order that notifies the defendant of the lawsuit and explains how and when to respond to the complaint.

Subject-matter jurisdiction

is a court's power to hear certain kinds of cases. The US has both a state and a federal court system. Subject matter jurisdiction determines which court system may hear a particular case. Cases may fall under state jurisdiction, exclusive federal jurisdiction, or concurrent jurisdiction. Exclusive Federal Jurisdiction -Admiralty Cases -Bankruptcy cases -Federal criminal prosecutions -Cases in which one state sues another state -Claims against the United States -Federal patent, trademark, and copyright claims -Other claims involving federal statues that specify exclusive federal jurisdiction State Jurisdiction -All cases not falling under exclusive federal jurisdiction. Have exclusive jurisdiction over certain cases, such as cases concerning adoption and divorce. Most cases, therefore fall under state court jurisdiction.

default judgement

is a judgement in favor of the plaintiff that occurs when the defendant fails to answer the complaint and the plaintiff's complaint alleges facts that would support such a judgement

Commercial Speech

is speech that conveys information related to the sale of goods and services. Courts analyze government restrictions on commercial speech according to a four-part test established in Central Hudson Gas & Electric Corp v. Public Service Commission of New York. Pg. 111 1. Does the speech concern an illegal activity? Is it misleading? If yes, then speech is not protected. If no, then question 2. 2. Is the government interest served by the restriction on commercial speech substantial? If yes, then ask question 3. If no, then speech is protected. 3.Does the regulation directly advance the government interest asserted? If yes, then ask 4th question. If no, then speech is protected. 4.Is the regulation more extensive than necessary to serve the government interest? If yes, then the speech is protected. If no, the speech is not protected. Easier, Advg. is protected if: 1. Lawful Activity 2. Not deceptive Advg. can be regulated if: 3. Substantial Gov't interest 4. No more than necessary

Bribery

is the offering, giving, soliciting, or receiving of money or any object of value for the purpose of influencing the judgement or conduct of a person in a position of trust. bribery of a public official is a statutory offense under federal law, which also covers bribes offered to witnesses in exchange for testimony. To demonstrate bribery under the federal statue, the government must show three elements: (1)something of value was offered, given, or promised to (2) a federal public official with (3) intent to influence that person's judgment or conduct. "the thing of value" has been construed very liberally; actual commercial value is not necessary. public officials - members of congress, government officers and employees, and anyone "acting for or on behalf of" the federal government "in any official function, under or by authority of" a federal government department or agency. Private employees responsible carrying out federal programs or policies are considered public officials. commercial bribery is a bribe in exchange for info or payoffs. The Foreign Corrupt Practices Act serves to combat bribery of foreign officials.

Service of process

is the procedure by which courts present these documents to defendants

in rem jurisdiction

latin for ("jurisdiction over the thing"), over the property. If a defendant has property in a state, a plaintiff may file suit against the defendant's property instead of the owner. For example, suppose a Utah resident had not paid property taxes on a piece of land she owned in Idaho. Idaho courts have in rem jurisdiction over the property. Thus, an Idaho state court has the power to seize the property and sell it to pay the property taxes in an in rem proceeding.

Commerce Clause

located in Article I, Section 8, of the Constitution. This clause states that the U.S. Congress has the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This allocation of authority simultaneously empowers the federal gov and restricts the power of state govs.

An appellate court

may render four basic decisions. -affirming the decision of the lower court. -modifies the remedy if the decision was correct but the remedy was inappropriate. -reverses -remands, if they think they committed an error but does not know how that error affected the outcome of the case. It remands the case to the lower court for a new trial. One of the judges who votes with the majority records the court's decision and its reasons in the majority opinion. If a judge agrees with the majority's decision, but for different reasons, she may write a concurring opinion, stating the reasons she used to reach the majority's conclusion. Finally, judges disagreeing with the majority may write a dissenting opinion, giving their reasons for reaching a contrary conclusion.

Damages

nominal damages Monetary damages awarded to a plaintiff in a very small amount, typically $1 to $5, to signify that the plaintiff has been wronged by the defendant even though the plaintiff suffered no compensable harm. punitive damages aka exemplary damage compensation awarded to a plaintiff that goes beyond reimbursement for actual losses and is imposed to punish the defendant and deter such conduct in the future. compensatory damages Money awarded to a plaintiff as reimbursement for her or his losses; based on the amount of actual damage or harm to property, lost wages or profits, pain and suffering, medical expenses, disability, etc. Legal Principle: In general, in deciding whether to strike down a punitive-damage award as unconstitutional, the court will look at (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive-damage award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. END CHAPTER 8

Intentional Torts

occur when the defendant takes an action intending certain consequences or knowing they are likely to result The most willful of torts. divided into (1) torts against persons (2) torts against property (3) torts against economic interests. torts against persons are intentional acts that harm an individual's physical or mental integrity.

False Imprisonment

occurs when an individual is confined or restrained against his or her will for an appreciable period of time. may occur (1) physical restraint (like tying someone to a chair) (2) physical force (like pinning someone against a wall) (3) a threat to use immediate physical force (4) refusal to release the plaintiff's property moral pressure is not enough to establish a false imprisonment. Because retailers and security guards are the usual defendants in false imprisonment cases as a result of their need to sometimes detain and question a suspected shoplifter, this tort is known as the *"shopkeeper's tort."* Retailers are protected under *"shopkeeper's privilege"* but the suspect cannot be held an unreasonable length of time and questioning must be reasonable. Jury decides case by case what is reasonable.

Venue

once a case is in the proper court system, venue determines which trial court in the system will hear the case. Usually, the trial court where the defendant resides is the appropriate venue. If a case involves property, the trial court where the property is located is also an appropriate venue. If the focus of the case is a particular incident, the trial court where the dispute occurred is an appropriate venue. The plaintiff chooses from appropriate venues when she files. If the location of the court where the plaintiff filed the case is an inconvenience to the defendant or if the defendant believes it will be difficult to select an unbiased jury in that venue, the defendant may request that the judge move the case by filing a motion for a change of venue. The judge has the discretion to grant or deny the motion. Legal Principle- Venue is appropriate in the county where the defendant resides or where the incident took place over which the lawsuit arose. Notes from class- Geographic location. File where... - Where defendant resides. - Where loss, injury occurred. - Right where money is due every month. - Where property is located.

Liability without fault or strict liability

only certain crimes, typically violations of regulatory statutes, allow punishment without proof of guilty mind; applies to actions that, regardless of the care taken, are specifically prohibited, such as selling cigarettes or alcohol to a minor. Although a business might not have intended to sell to a minor (thus lacking a guilty mind), the statutory violates still allows liability to be assessed.

quasi in rem jurisdiction

or *attachment* jurisdiction, *over a defendant's property unrelated to the plaintiff's claim.* Trick-Quasi, que tu hables, eso no tiene nada que ver con eso. For example, suppose Charlie, a Massachusetts resident, ran a red light while he was vacationing in Cali and collided with Jessica's car. Suppose further that Jessica suffered extensive injuries from the accident and successfully sued Charlie for 200k in a Cali state court. The Cali court can exercise quasi in rem jurisdiction over Charlie's Cali vacation home by seizing it, selling it, and transferring 200k to Jessica to satisfy her judgement against Charlie. Anything extra goes back to Charlie.

Political Speech

sometimes corporations engage in political speech: that is, they support political candidates or referenda.

strict-liability offenses

those offenses that do not require state of mind.

Unprotected Speech

three part standard to determine whether speech is obscene: 1. would the average person, applying contemporary community standards, find that the speech, taken as a whole, appeals to the prurient (marked by or arousing an immoderate or unwholesome interest or desire) interest? 2 Does the speech depict or describes, in a patently offensive way, sexual conduct specifically defined by law? 3. Does the speech, taken as a whole, lack serious literary, artistic, political, or scientific value? If the answer to all these questions is yes, then the First Amendment does not protect the speech in question. defamation is speech that harms the reputation of another. fighting words are a third class of unprotected speech. hate speech or derogatory speech directed at members of another group, such as another race. does not protect defamation, or speech that harms the reputation of another.

White Collar Crime

white-collar crime as a variety of nonviolent illegal acts against society that most often occur in the business context. ex. mail fraud, bribery, embezzlement, and computer crimes. Class Notes- 1) Employees commit crime 2) Crimes against business 3) non violant