Business Law Exam 1 - (Part 1) HW questions

What is the meaning of res ipsa loquitur?

(The facts speak for themselves). Merely because an event happened, negligence can be inferred. I.e. surgery damage.

What is a tort? What is the etymology of the word?

A tort is a wrongful action. Tort comes from the Latin torquere meaning to twist (do wrong).

Where in the Constitution can the due process clause be found?

Both the 5th and the 14th Amendments. There is procedural due process and substantive due process.

What are some important differences between civil and criminal law?

Civil law involves rights and duties between parties in society and seeks remedies for the wronged parties. Criminal law deals with wrongs committed against society that demands redress. Civil law is focused on securing remedies, whereas criminal law is focused on punishing wrongdoers to make an example of them.

Explain the difference between compensatory and punitive damages.

Compensatory damages compensate the plaintiff for actual losses. The goal is to restore the plaintiff to the same position they were before the tort was committed. Punitive damages are given to the plaintiff in order to allow them to punish the wrongdoer specifically. This is a rare occasion and usually only happens in the most egregious cases.

Are the plaintiffs seeking a legal remedy or an equitable remedy? Why

Equitable remedy. They are seeking to not have the proposed law passed. There is no directly legal remedy in the event that they win, they would would getting the equitable remedy of not being subject to the law.

What is the tort of negligence?

Failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

Read through the appendix that follows this chapter, and then answer the following question: Where would you look to find the relevant California and federal laws?

Federal: The United States Code, a law compilation that can be found at www.gpoaccess.gov/uscode/index.html State: Each state has its own code where it stores laws in a system that resembles the U.S.C. For California one should look in the California code, which can probably be found on a Cali gov website

What are two basic categories of torts?

Intentional - when a wrongful act is knowingly committed Unintentional - when a wrongful act is unknowingly committed through accident or negligence

What is the common law tradition? Why is it important?

It has its roots in the English legal system. Because the US was an English colony, we got much of our legal understanding from England. The goal of the English common law was to create a set of laws that applied across the entire English empire. It is important because the US adopted this approach to law and made laws of their own that applied to the entire land.

In what circumstances is strict liability applied?

It is applied when activities, however carefully done, have a significant risk of damage that is unpredictable, such as mining with dynamite or keeping a pet lion.

Do you find the holding of the 1942 Wickard v. Filburn case odd? If so why? If not, why not?

It is odd because I think that people should be able to produce normal products for personal use without federal intervention. However, I do understand the economic point of view presented by the Supreme Court.

P. 17 Case Study Who are the parties (the plaintiffs and the defendant) in this lawsuit?

Plaintiffs: The automobile manufacturers who are filing the suit Defendant: The state of California

Why does boxing or football not involve torts?

Players in these sports take an assumption of the risk. Two things are required: 1) the plaintiff had knowledge of the risk and 2) the plaintiff exercised voluntary assumption of the risk.

Explain the difference between procedural and substantive due process.

Procedural due process gives people the right to prior notice and a trial before losing life, liberty, or property. Substantive due process protects people's rights from inappropriate or shocking government action.

What are the four elements of negligence?

Proof that: 1 The defendant owed a duty of care to the plaintiff 2 Defendant breached that duty 3 Plaintiff suffered a legally recognizable injury 4 Defendant's breach caused the plaintiff's injury

What is the meaning of stare decisis? Why is this principle important?

Stare decisis means to "stand on decided cases". It is an extension of the common law tradition in which judges follow the precedents established by earlier court cases. There are a few reasons why this is important. It is more efficient for a court to use another's court previous decision for a case rather than to "reinvent the wheel". Also, decisions by higher courts' decisions are binding on lower courts and a given court should adhere to its own earlier decisions unless it has compelling reasons to do so.

What is the primary source of the law that is at issue here? Explain and justify your answer.

Statutory law. The state of California is in the process of passing a law that reduces carbon dioxide emissions. It is a statutory law because it is law created by a legislature.

Explain the three kinds of "scrutiny" applied to matters involving equal protection.

Strict Scrutiny A law or action that stops people from exercising a fundamental right must promote a compelling state interest to pass strict scrutiny. Intermediate Scrutiny This involves discrimination based on gender or legitimacy. These laws must be substantially related to important government objectives to pass intermediate scrutiny. "Rational Basis" Test This involves economic and social welfare. It is valid if there is a "rational basis" on which the classification relates to a legitimate government interest.

What constitutional clause gives the federal government the power to regulate commercial activities among the various states?

The Commerce Clause. This gives congress the power to regulate interstate commerce.

What constitutional clause allows laws enacted by the federal government to take priority over conflicting state laws?

The Supremacy Clause. State laws that directly conflict federal laws are rendered invalid.

What are four primary sources of law in the United States.

The US Constitution and the states' constitutions. US Constitution is the supreme law of the land. Constitutional law sets forth the general organization, powers, and limits of governments. Statutes (laws) passed by Congress and by state legislatures. This is also called statutory law. This includes ordinances down to the local ordinance level. Administrative law. This is the law created by administrative agencies such as the FDA. Case law. This is a type of catch-all category for anything not covered by the other three types. If a case is not covered in a written law, then the law is determined by previous courts' decisions on this type of case. This can also be described as ruling based on precedence.

What is the basic structure of the US government?

The US government is split into 3 different branches. Executive, legislative, and judicial. The US government is a federal system. The national and state governments share sovereign power. In some areas the national government has rule, but some areas of power are reserved for the states.

Explain the difference between the establishment and free exercise clauses of the first amendment.

The establishment clause prevents the government from setting up a state church. THe free exercise clause allows people to practice their own religions within reason.

What is the Bill of Rights? What freedoms does the First Amendment guarantee?

The first 10 Amendments in the US Constitution. A need arose for a written declaration of rights of individuals. The First Amendment guarantees the freedom of religion, speech, and press. It also grants the right to assemble peaceably and petition the government.

Where in the Constitution can the equal protection clause be found?

The fourteenth Amendment.

Explain what "equal protection of the laws" means.

The government must treat similarly situated individuals in a similar manner. People in similar areas of life have the right to the same treatment from the law.

Explain the concept of "checks and balances."

The national government is divided into three separate branches - the executive, legislative, and judicial branches. Each branch has certain powers to check the power of the other branches.

List and give a one or two sentence description of the various intentional torts against the person.

The types of intentional torts are: Assault and Battery ( threat of physical harm and completion of a harmful act respectively) False Imprisonment (intentional imprisonment of another person without justification) Intentional Infliction of Emotional Distress (Doing or saying something that causes another person emotional distress whether intentionally or in jest) Defamation (causing injury through publication or public speech). Invasion of the Right to Privacy (Certain areas of a person's life are protected by the right to privacy, and when those areas are intruded upon, that is an intentional tort) Appropriation (Using the identity information of another person for one's own benefit) Fraudulent Misrepresentation (Intentional deceit for personal gain) Abusive and Frivolous Litigation (Initiating a lawsuit out of malice and without probable cause) Wrongful Interference (This encompasses encroaching on a previous agreement/contract between parties or businesses) Trespassing (Traveling onto someone else's private property without permission)

What is meant by strict liability?

There are some circumstances where dealing with dangerous elements make the defendant liable no matter their intentionality. I.e. keeping a dangerous pet.

Explain the difference between equitable and legal remedies

These are two different types of remedies that people would seek when going to court. Historically, legal remedies were limited in their possibilities. They were often limited to land or monetary compensation. Courts of equity were established for cases in which legal remedies were impractical. A court of equity can offer compensation such as requiring someone to follow the agreements of a contract. These two types of remedies are both present together in modern courts.

What are some "reasonable restrictions" on your right of free speech?

They are analyzed on a case-by-case basis. Reasonable restrictions must be content neutral, meaning it is a general restriction aimed at combating a secondary problem such as crime. For example, obscene displays are harmful to children.

Try answering the 4 questions on page 51 regarding the motorcycle helmet law.

This law is not encroaching on a right. Rather, the complaint is that the law doesn't make all motorists wear helmets Strict, intermediate, and "rational basis". Rational basis. This is not a matter of gender or legitimacy, it is a matter of whether or not it is rational to require motorcyclists to wear helmets. Yes, because it is rational to require motorcyclists to wear helmets when car drivers do not because motorcyclists are more at risk due to the lack of vehicular protection.

Does the threat of terrorism justify the US government in reducing the privacy rights of its citizens?

To a certain extent, yes. However, action taken to observe private details should be under the strictest scrutiny. Only confirmed terrorist activity gained from surveillance should be punishable. All other evidence should be discarded without a warrant much like evidence stolen from a house without a warrant should be discarded. If privacy is broken for reasons other than matters of national security and national self-preservation, then the Constitution is in jeopardy and the meaning of the nation itself is in jeopardy.

What is the purpose of tort law?

Tort laws seek to compensate for torts committed. They seek to provide remedies for acts that cause harm.

List and give a one or two sentence description of the various intentional torts against property.

Trespass to Land - entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization Trespass to Personal Property - Unlawful taking or harming of another's personal property. Interference with another's right to the exclusive possession of their property. Conversion - Wrongfully retaining possession of another's personal property and placing it in another's service Disparagement of Property - economically injurious falsehood made about another's property or products