BLAW EXAM 1 Murphy

Law and Morals

are different but overlapping: law provides sanctions while morals do not

exclusive jurisdiction

authority of only federal or state courts to hear and decide cases

Proving Crime has been committed

gov't must prove liability beyond a reasonable doubt

Tennessee wine case

law regulating blatantly favored state's residents, had little to do with publics health and safety, thus constitutional

Why protect speech?

-Benefits Individual: supports notions of autonomy, self-fulfillment, individual liberty, moral independence -Benefits Society: makes for a well-informed citizenry, which produces better political outcomes and effective government -Avoids difficulty of defining what viewpoints the government would be allowed to suppress, what viewpoints would be protected, and how judges, juries, and prosecutors would make such distinctions

Limits on Business Behavior

-Business Torts -White COllar Criminal Statutes (ie bribery) -Otther statutory limitations (Antitrust, etc)

Defamation

-False statement of fact -published -causation -damages may be presumed in case of libel

Assume that you believe you have suffered a legally-recognizable wrong. You are considering filing a lawsuit. What factors should you consider as you are deciding whether to pursue legal action? (Please list at least 3.)

-Figure out which type of court system has jurisdiction over the case based on a variety of factors -Whether you want to settle the case in court or through a form of Alternative Dispute Resolution -How much it will cost to hire an attorney throughout the length of your case relative to the possible reimbursements earned from the case.

Dispositive Motions

-even assuming truth of opponent's facts, you win as a matter of law. No need for trial Include: -Motion to dismiss -Motion for judgment on the pleadings -Motion for summary judgment -Motion for directed verdict -Motion for judgment notwithstanding the verdict (jnov)

Tortious interference with a contract

-valid, enforceable contract between two parties -Third party's knowledge of contract -Third party intentionally and unfairly caused one party to end contractual relationship -third party interfered for own economic interest

Areas of Law

1) Criminal 2)Constitutional 3) Tort 4) Contract 5) Agency 6) Employment

Lawyers practice art of reasoned persuasion

1. Represent clients zealously 2. Act as officers of court 3. argue about and determine what applicable law are

Negotiation

75% of cases settle

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

ADR

Alternative Dispute Resolution

I am a private citizen from Indiana. Assume that I am outraged to hear on television that a particular clothing manufacturer in South Carolina mistreats its workers, in apparent violation of US labor laws. Can I properly sue the company? Explain.

Although the Federal court system would have subject matter jurisdiction over such a case - as a result of diversity of citizenship and the fact that the company is in direct violation of federal law - it is unlikely the citizen could file suit because teh company is not directly harming the private citizen living in Indiana

causation in fact

An act or omission without which an event would not have occurred. Did injury occur because of defendant's act?

Speech limitations

Any restriction of political speech must meet strict scrutiny test -Types of speech taht are unprotected 1. Obscenity 2. Defamation 3. Fighting Words Content neutral restrictions are generally constitutional Commercial speech may receive less protection than political speech

Intentional Torts Against Persons

Assault and Battery False Imprisonment Infliction of Emotional Distress Defamation Invasion of Privacy Business Torts

Causation in fact Example

BP Gulf of Mexico spill Claimants had to prove falloff in business was caused by oil spill and not bad business practices, etc

Devastating Emails

Bank of America sued for fraudulent mortgage backed securities

Tortious interference cases

Bratz doll creator was working for Barbie

Sources of Law

Constitution Statutes Regulations Case Law

Primary Sources of Law

Constitution, Statutes, Regulations, Case Law

Potential Product Liability Parties

Defendants: -producer of component part -manufacturer -wholesaler or distributor -retailer Plaintiffs -retailer -Buyer Second hand purchaser, donee or guest, lesee or other user, injured bystander

Steps to jurisdiction

Does Court have personal jurisdiction? -under either regular rules or long arm statute If yes, is subject matter jurisdiction in state courts (unless federal jurisdiction) Federal Court will have jurisdiction if diversity exists if case involves federal question, ie at least $75k

1. What are your reactions to the Hayden case (on Sakai)? Is it appropriate to impose a duty on Notre Dame here? Why or why not? Does a finding that a defendant may have been negligent necessarily reflect badly on the defendant?

I do not think that it was appropriate to impose duty on Notre Dame in the Hayden case because although they have a duty to protect those who attend ND games, there isn't a way for Hayden to demonstrate that ND is liable for her injury. In this case there is no proximate cause between the criminal act and the injury she suffered. Even though such an injury may be foreseeable in situations such as this one, the connection to ND is not strong enough.

As your reading notes (p.26), under our federal form of government, states have inherent sovereign power. The states delegated to the federal government a portion of that power. The Constitution sets forth specific powers that can be exercised by the federal government. If the federal government exceeds powers granted under the Constitution, the federal government's actions should be struck down by the courts. a. Does it often happen that courts strike down federal government actions because the federal government has exceeded its power? Why or why not?

It does not happen too often that the courts will strike down federal government actions when the federal government has exceeded its power. It is rather rare that this happens because there is a separation of power between the three branches of government already. Therefore, these three branches employ checks and balances to make sure that no one branch exceeds its power.

Would Leonard have a harder case or easier one if the only place the statement was made was in an Internet chat room? Very briefly explain.

It would be a harder case because it is harder to trace digital footprints such as those statements made in an internet chat room.

Someone writes of Mary Leonard: Mary Leonard served 10 years in a federal penitentiary for tax evasion. Mary Leonard wishes to file a defamation suit against the speaker. a. Assess the strength of Leonard's case. Are the elements of defamation met? What additional facts would the court need to decide this case?

It's not clear from the current information whether the elements of defamation are met. In order to determine if they were met, the court would first have to know if Mary Leonard did in fact serve 10 years in a federal penitentiary for tax evasion or not. If she did not, the speaker would be making a false statement about Mary Leonard. It also needs to be proven if the speaker actually meant the Mary Leonard in question or a different person with perhaps the same name. Likewise, it needs to be determined if at least one person heard the statement from the speaker. Lastly, it must be consider if Mary Leonard is a public figure and if the speaker meant actual malice or not.

What makes a product defective or unreasonably dangerous

Manufacturing Defect -departs from regular design design defect lack of reasonable warning

substantative due process

Most Laws: rational basis standard (is law rationally related to legitimate state interest) Gender-based law: intermediate standard (substantive state interest) Laws limiting fundamental right: strict scrutiny (law upheld only if it furthers compelling state interest and uses least restrictive means)

finding court with jurisdiction

Need both personal and subject matter jurisdiction

Could a state impose a higher tax on out-of-state companies doing business in the state than it imposes on in-state companies if the sole reason for the tax is to protect in-state companies? Why or why not?

No, a state cannot impose a higher tax on out-of-state companies doing business in the state than it imposes on in-state companies if the sole reason for the tax is to protect in-state companies because this would be a direct violation of the equal protections clause in the US Constitution.

Can a court hear a case if that court does not have proper jurisdiction? Explain.

No, because jurisdictions refers to the ability or authority of a particular court to hear a case and decide a specific outcome. If they do not have proper jurisdiction, than they do not have such legal authority to hear the case

Refer to the article on Sakai "Russia High Court Overturns Acquittal in U.S. Journalist Murder Case." Could a case be handled similarly in the United States (that is, could a U.S. appellate court similarly overturn a criminal acquittal and remand for retrial)? Why or why not?

No, this would not happen in the United States because an acquittal cannot be appealed by the persecution because the constitution prohibits double jeopardy

Assume that Olson is the owner of a small retail business. One day at work, Olson hits Edwards over the head with a pipe, knocking Edwards out. Can you imagine any circumstance where Olson would NOT be liable for battery? Try to come up with three possibilities, briefly explaining why there would be no liability in each case.

One possibility in which Olson would not be liable is in the case of self-defense. If Edward, say, came into Olson's work and attacked Olson, Olson has the argument that he was in fear of his safety, and thus knocking Edward out was an act of self-defense. Likewise, if Edward was caught by Olson stealing from the business when he was hit, Olson would have a legitimate argument that he was acting in defense of his property. However, this would only be the case if these men lived in a state where it was legal to knock someone out in such a way in defense of property. A third possibility is if for some reason Edward granted Olson permission to hit him on the head, thus consent exists for such an action. Edward's consent would thus make this action legally permissible, as Olson only did what Edward asked him to.

Read Free Speech Protection in the United States, on Sakai. What rationales may justify this high level of protection for speech? Give at least three.

One rationale for such a high level of protection is the fact that freedom of speech is one of the key tenants of the Constitution that the United States of America was built on. Especially in consideration of the fact that the first case was regarding speech on public issues, it is extremely important that such speech on public issues - regardless of how hateful it may be - is allowed to ensure that "public debate is not stifled." Likewise, another rationale may be that a dangerous precedent would be set if the government was able to restrict speech purely on the basis of viewpoint, as with the Tam Case. A third rationale concerns the third case in the article, as a dangerous precedent would be set if the government was able to restrict who could use certain apps and websites, as with the sex offender using Facebook. If such a precedent were set, only certain individuals would be able to enjoy First Amendment rights set forth for all individuals in the Constitution.

3. Explain why you would have liability if you cause an accident while texting and driving.

One would have liability for texting and driving because they are not acting according to the reasonable person standard. Such standard behavior expected of a driver is to be completely focused on the road ahead, and the reasonable person is careful and conscientious, something that someone texting and driving is not. Further, the accident implies damages, either to property or another, thus by crashing while texting one would be committing a tort of negligence.

Negligence

Plaintiff must establish -Duty -Breach (failure to act as a reasonable person) -Causation Causation in fact (but for) Proximate cause (foreseeability of harm) -Damages

Eminent Domain (5th Amendment)

Power of a government to take private property for public use. ie highway construction

Commerce Clause issues

Power of federal government to regulate -issue must affect interstate commerce, but courts have interpreted clause so broadly that this has been regarded as (almost dead issue) Power of State Government to regulate -states cannot unnecessarily impinge upon interstate commerce -wanted to prevent states from restricting trade w/in state from out of state businesses

RICO Act

Racketeer Influenced and Corrupt Organizations Act

Commerce Clause has limits

Roberts 2012 opinion

c. b. Would Leonard have a harder case or easier one if the above-quoted statement had been made by a former employer in a letter of recommendation? Very briefly explain.

She would have a harder case because of the fact that it is inferred that Mary Leonard gave permission to her employer to write their honest opinion about Leonard. As a result, Leonard cannot be mad if it was a true statement that the employer was referring to.

Criticisms of current law of name and likeness

State law hard to track, often unclear inconsistent results judges making aesthetic judgements spillover effects

State Negligence Laws

States are split between pure contributory, pure comparative, and modified of both

Why is the Kelo decision that is the subject of the Bill of Rights Institute article controversial? This was a 5-4 decision by the Supreme Court. The majority found that supporting economic development is a compelling policy concern that justifies condemnation of land for private development. What public policy concerns could be raised by those opposing such use of the eminent domain power? Try to list three

The Kelo decision was controversial first because it ruled that the government was able to take private property against a property owner's will and second because the land would not be used for public use, but instead would have "public benefit" on the community. Such a decision raised a slew of public policy concerns, including that the project replacing this privately owned land was not a public project. Likewise, it was also a matter for concern because the primary recipient of the project's income would again not be public figures or the government, but instead the private developers leading the project. Lastly, such a ruling serves to undermine the rights of the underserved, such as lower-income citizens in areas such as the inner-city where such a precedent could lead to a similar ruling where they were likewise kicked out of their homes.

What is the difference between the criminal defenses of duress and entrapment?

The difference between the two is the fact that defense of duress is the act of being lured under the threat of death or similar serious bodily harm. No ordinary person would be able to resist such threats. On the other hand, entrapment is the act of being lured by an agent or body of the government. Using such incentives as money, the lure is set as being too tempting to resists, and it is something that you would have otherwise avoided without the incentive. With entrapment, the person would not have committed the crime without the actions of the officer

2. Ruth carelessly parks her car on a steep hill, leaves the car in neutral, and fails to engage the parking brake. The car rolls down the hill and knocks down a power line. The sparks from the broken line ignite a grass fire. The fire spreads to a barn a mile away. In the barn is a large quantity of dynamite, which explodes, injuring Jim, a passing motorist. If Jim sues Ruth for negligence, which element of negligence will be hardest for him to prove? Will he likely be able to recover damages from Ruth? Might he have a better claim than this negligence claim against Ruth?

The element that would be hardest for him to prove would be causation. Jim must be able to clearly demonstrate that his injuries were caused by Ruth's failure to engage the parking break. It becomes an issue of proximate cause because that this specific chain of events was a direct result of Ruth's carelessness. A better claim might be strict liability to the barn that had large quantities of dynamite, as having this dynamite would be considered engaging in abnormally dangerous activities.

b. Given what you know of strict liability theory, assess the plaintiffs' likelihood of success. What elements of strict liability will be the hardest for plaintiffs to prove? (I don't ask here about defenses, because generally the only defense to strict liability is that one or more of the elements cannot be proven.)

The element that would be the hardest to prove would be that the defendant's products were unsafe on their own. This would be the hardest to prove because of the enormous precautions that companies take by explicitly showing recommended serving size and other key nutritional facts on the labeling. Also, many consumers are able to eat McDonalds and Oreos without the negative health effects that the plaintiff is claiming led directly to his obesity.

We will see throughout the course that new technology and methods of communication (such as the web, email, Twitter, etc.) gives rise to new legal issues. For example, this chapter considers the issue of whether jurisdiction over a company exists in every state because that company maintains a website that can be accessed from computers in every state. On this issue, which of the following statements is more accurate? Courts are following traditional jurisdictional rules but applying those rules to these novel situations. Courts have come up with entirely new jurisdictional rules to cover jurisdiction in cyberspace

The first statement is more accurate because courts have developed a "sliding scale" standard - based on traditional jurisdiction rules - to use when there exist legal issues between a web site owner and a party in another state.

Recently, product liability lawsuits have been filed against McDonald's Restaurants and Kraft Foods, the maker of Oreo cookies. The plaintiffs allege that the products of these companies caused them to suffer from obesity. a. Given what you know of negligence theory, assess the plaintiffs' likelihood of success. What elements of negligence will be the hardest for plaintiffs to prove? What defenses may be available to the defendants?

The hardest elements of negligence for the plaintiff to prove would be duty, cause in fact, and proximate cause. It would be hard to prove that the defendant had a duty to prevent the plaintiff's obesity because both companies sell their products to millions of consumers - and both are known for selling primarily fatty foods. Likewise, it is unlikely that the plaintiff's obesity is due purely to his consumption of Oreos and McDonalds. In order to fulfill cause in fact, the plaintiff would need to show that he had consumed nothing other than the defendant's food products that led to his obesity. One defense that may be available is to prove that the plaintiff ate more than the recommended serving size as highlighted on perhaps the Oreo's packaging. Likewise, another defense would be that the defendant assumed the risks associated with consuming the fatty foods.

The vast majority of holdings in a law library are Reporters (publications of past legal decisions). How are these old cases important or useful?

These reporters are important because they contain appellate decisions from cases in the past. They are extremely important because they help provide precedent - and thus helping to make decisions in future cases

Fundamental Rights

Those in Bill of Rights interstate travel voting right to privacy right to "certain personal choices to individual dignity and autonomy"

Business Torts

Tortious interference with contractual or business relationship Defamation

The Slants Band

Trademark law provision banning disparaging remarks violates 1st Amendment rights

Fraud as a crime (mail fraud, wire fraud)

Violation of statute prosecution by state

Warning WARN

WOW - attract use attention AVOID - what user shoul not do REPAIR injury - ie rinse with water or not NEAR risk is best placement for warnings

Dram Shot Acts

Who is responsible for crimes or torts that result of ie overserving alcohol

Swedenburg

Wine maker, wanted to ship her wine

Under the felony murder rule (not mentioned in the book), one whose conduct brought about an unintended death in the commission or attempted commission of a felony is guilty of murder. For example, if a customer or bank teller or security guard dies during a bank robbery, the robbers and their conspirators (such as the getaway driver) can be convicted of murder. Forty-six states have some version of the felony murder rule. Is it a good rule? Why or why not?

Yes I think it is a god rule, because it sets a tone that involvement in an inherently dangerous crime that results in fatalities can lead to murder charges for all of those involved.

stare decisis (precedent)

"Let the decision stand"... courts act consistently with its own prior decisions and decisions of superior courts

Fraud as a Tort

-A breaches duty to B -Suit brought by B -A pays B $ for damages

Elements of Forgery

-Making or Altering a writing to change someone's legal liability (acts rea) -Doing so intentionally to defraud that person (mens rea)

Purposes of Law

1. Protect Interests of all Parties 2. Constrain Business 3. Facilitate Business

Criminal Law

Administrative, antitrust, constitutional, criminal, environmental Law, criminal law, labor law, securities law

civil law

Agency, Bailments, Bankruptcy, Business Organizations, Commercial paper, Contracts, insurance, property, sales, torts, trusts and wills

Diff. Strict Liability

Elements: -product defective when defendant sold it -defendant normally in business of selling -product is unreasonably dangerous -harm causation goods not substantially changed Defenses: Elements not met

Proximate Cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.

Differences between Negligence and Strict Liability

Negligence: -All Products -Did defendant act reasonably Strict Liability: -Dangerously Defective Products -Is there a defect making the product unreasonably dangerous for foreseeable uses or misuse

Diff. Negligence

Negligence: Elements-- -Duty -Breach -causation -Damages Defenses: -Elements not met -Assumption of RIsk -Comparative Negligence

Constitutional Protections

Once arrested, a criminal defendant has the considerable power and resources of the government lined up against them. Our criminal system would rather let a guilty person go than to make a innocent person suffer unjust punishment. Throughout arrest and subsequent sentencing

Give an example (other than those in the text) of a. a battery with no assault b. an assault with no battery

One example of battery that is not also assault is if you were to, for example, hit someone while they were sleeping. An example of an assault with no battery is if you were to swing at someone as if to punch them and miss hitting them.

substantive law

administrative law, agency, bailments, commercial paper, constitutional law, contracts, corporation law, criminal law, insurance, personal and real property, sales, taxation, torts, trusts and wills

procedural law

administrative, Appellate procedure, civil procedure, evidence

concurrent jurisdiction

authority for both state and federal courts to hear and decide cases

Kelo Case, Seized property to give to private developers

broad use of term "public Use" economic development is a valid public use -tax revenue -new jobs

Negligence Defenses

contributory negligence (A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff.) comparative negligence (A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence.) assumption of risk (ie Notre Dame field Goal kick case)

Corporation personal jurisdiction

corporations are residents of any states where it is incorporated, has its principal place of business, or does business

Discovery of electronically stored information

enormous task of finding relevant info from vast trove of data

substantive due process

gov't may not make law or take action that exceeds or abuses its power gov't must provide appropriate reason for depriving an individual of life, liberty, or property

Procedural Due Process

individual has a right to notice and the opportunity to be heard

Tort Reform

legislative measures to make it harder to sue, or to limit amount of recovery Reaction to perceived excessive rewards

BMS ruling

limits on where mass tort cases may be filed, jurisdiction is important

Ward v K-mart People were walking through employee door and employees knew about it

man was injured, was their fault for putting pole in the way of door

Mediation

may preserve relationships of parties may not reach agreement

Unintentional Torts

negligence Strict Liability

State Action

only gov't can violate constitutional rights

Legislative, Executive, Judicial Power

power to write regulations, enforce rules, and to adjuate compliance and assess penalties

business negligence claims

premises liability, product liability, malpractice

elements of crime

prohibited act (actus reus) attempts also prohibited guilty intent (mens rea) necesary unless strict liability crime

Free Speech

protected even when it is hurtful, fact that those have freedom to say it is good thing

Riley v. Calif. trying to search through phone as being similar to searching pockets

ruled two are not similar, must have warrant to search through phone

Arbitration

settling a dispute by agreeing to accept the decision of an impartial outsider -compulsory if arbitration clause in contract

Does roundup cause cancer?

specific causes of cancer very hard to prove, judge still approved courtroom losses

Arguments against tort reform

such measure limit normal court power, power of juries concern for injured plaintiffs concern about clogged courts and excessive rewards are unfounded Risk of large damages make companies try harder to be safe

jurisprudence

the science or philosophy of law

intentional torts against property

trespass to land trespass to personal property conversion Nuisance disparagement of property

You read about some advantages of Alternative Dispute Resolution. Are there reasons or circumstances under which it might not be a good decision to use ADR rather than the court system?

One such example would be if there is an imbalance of power between the two parties involved. Another reason could be in a situation like a divorce, where the two parties are not on good terms and have no intention of reaching a resolution.

Advantage of arbitration over trial

Parties have more control over the process. The parties involved can choose the arbitrator. It is more efficient and less expensive.

Consider United States v. Hanousek, described in the Reviewing Criminal Law box on p. 208. Hanousek was convicted in that case. What theory described in the chapter allowed his conviction? Is that result fair? Why or why not?

The theory that allowed his conviction was ordinary negligence, because ordinary negligence was the legal standard for criminal negligence under the clean water act. Likewise, all of the elements of negligence were met, and I do think that this was a fair conviction. Hanousek did not act like a reasonable person when he stopped construction of the protective wall between the railroad and the pipeline, and thus it was his fault that led to the pipeline rupturing and expelling oil.