Intro To Law Mt2 Ch. 5-6

Front 1

RBT

1. challenge to law likely to succeed/fail?
2. who usually wins?

Back 1

1.FAIL!
2. government usually wins.

Front 2

scrict scrutiny

1. there must be no ____ _____
2. this is the best chance for WHO to win?

Back 2

1. narrower alternatives
2. challenger of law

Front 3

1. where is privacy in constitution?
2. what does it say?

Back 3

1. NOT in us constitution. in 1,3,4,5,9 amendments
2. penumbras-implied rights guarenteed by us constitution

Front 4

freedom of information act AND privacy act


def

Back 4

-allows ppl to request info in federal gov files

Front 5

HIPPA privacy act

Back 5

health insurance portability and acountability act

-health care providers/insurance must inform patients of how medical info will be used.
-medical records kept confidential

Front 6

enabling legislation

1. what is this used to do, by whom?
2.includes what? (3)

Back 6

1. used by CONGRESS, to create an agency
2. 1) name of agency
2) purpose & functions
3) powers of agency

Front 7

administrative agencies are important TODAY because they ...
1. (2)
2. do this how (2)

Back 7

1.issue rules and orders
2. enforce through investigation and adjudication

Front 8

1. who creates federal admin. agencies?
2. what doctrine allows this?
3.what article do courts see this?

Back 8

1.congress
2. delegation doctrine
3. article 1, section 8

Front 9

difference between executive and independent agencies

1. difference
2. ex. of each

Back 9

1. executive-P has power to hire/fire at any time
indep.- workers serve fixed terms, but P still appoints

2. ex. executive- FDA
indep.-EPA, SEC

Front 10

delegation doctrine

1. allows _____ to do what?
2. what are legis. rules?

Back 10

1. allows CONGRESS to DELEGATE LEGISLATIVE RULES
2. substantive rules that are binding

Front 11

exhaustion doctrine

1. def

Back 11

1. must go thru admin. process. and 'exhaust' all other administrative rememdies before going to judicial court review

Front 12

how does each branch exert power on agencies

1. exec.
2. legis.
3. jud.

Back 12

1. P's power to appoint agency members
2. enabling legislation and subsequent legislation (give and take away powers)
3. court's review of agency actions (after exhaustion doctrine)

Front 13

what does rulemaking include for agencies? (2)

Back 13

1. notifying public of proposed rules
2. receiving/considering public's comments

Front 14

APA's notice-and-comment rulemaking procedure

1. three steps
2. formal or informal?

Back 14

1. 1. publish in federal register: (include when where proceedings, why there is authority to create, and what the subject matter is)
2. comment period: agency summarizes ex parte (off record)
3. final rule: publish in federal register, with Minor changes from public's coments

2. informal

Front 15

difference between Formal and Informal rulemaking

Back 15

Formal: has a formal hearing comment process vs. just posts on federal register of informal

Front 16

binding agency actions include 2 types of agency rules

Back 16

1. substantive/legislative rules
2. procedural rules of the agency

BOTH BINDING!

Front 17

ways agencies enforce (4)

Back 17

1. investigation: compliance reports
2. search and seize (mostly don't need warrants)
3. subpoenas (ordinary and subpoena duces)
4. direct observation

Front 18

when can agency search without a warrant (3 and give ex. of each)

Back 18

1. highly inspected industries ex./firearm store
2. hazardous operations
ex./coal mine
3. emergency situation

Front 19

negotiated settlements

1. before/after adjudication?
2. purpose
3. benefits

Back 19

1/ before
2. eliminate need for additional hearings
3. benefits firm: avoid expenses
agency:conserve resources/avoid formal action

Front 20

if no settlement has be reached thru negotiation, next step is ______, which involves a ____-like ________ process.

1. who is judge?
2. can either party appeal decision?

Back 20

if no settlement has be reached thru negotiation, next step is ADJUDICATION, which involves a TRIAL-like ARBITRATION process.

1. ALJ- works for that agency, but is unbias
2. yes

Front 21

ALJ decision was just appealed.

State the next steps.

Back 21

ALJ decision appealed.
-goes to governing agency body (ex. EPA).
EPA decision appealed to federal court of appeals.

final decision will then come from federal appellate court.

Front 22

difference between trial and administrative agency hearing

1. difference
2. burden of proof on who?

Back 22

1. administrative hearings: can include heresay (2ndhand info)
2. burden of proof on agency (to prove the gossip wrong!)

Front 23

ALJ renders an _________.

if no party appeals, it becomes the __________.

Back 23

initial order


final order

Front 24

govt in the sun act

1.what is it?
2. exceptions

Back 24

1. open public agency meetings
2. 1. if criminal records discussed
2. implementations to agency actions are frustrated
3. future agency rulemaking is discussed

Front 25

regulatory flexibility act AND small business regulatory enforcement act

Back 25

help small businesses compete against large businesses

1. measures costs of sm. businesses
2. prepare guides to help sm bus. comply w fed. regulations

Front 26

chevron deference

1. def.
2. who will uphold this?
3. procedure agency must follow to be eligible

Back 26

1. when statue is ambigious, agency's interpretation of LAW and FACT will stand in court.
2. courts will, even if they would have interpreted it differently
4. notice-and-comment rulemaking procedures (vs. interpretation procedures)

Front 27

tort laws are involved in civil/criminal/both?

Back 27

CIVIL CASES!!!

Front 28

1. purpose of tort law
2. does tort law allow for change of societal norms? ex.?

Back 28

1. provide remedies for invasion of PROTECTED INTERESTS
2. yes / internet privacy acts

Front 29

types of compensations (2)

-def.

Back 29

1. compensatory damages-reward plaintiff
-special damage awards: quantitative money losses (ex. wage lost)
-general damage awards: noneconomic aspects (ex. emotional pain of not having job)

2. punitive damages-punish wrongdoer, so others won't do the particularly unacceptable behavior again

Front 30

intentional torts means the tortfeasor..

(3)

Back 30

1. meant to do it
2. KNEW it could happen
3. SHOULD HAVE KNOWN it could happen (ex. DUI)

Front 31

T/F : Intent and motive are the same.

ex.?

Back 31

FALSE!!!!

ex. DUI...you clearly didn't MEAN to kill someone in a car accident, but you should have known.

Front 32

difference between assault and battery

1. difference
2. I or UI?
3. which is worse?
4. is physical injury necessary? ex.
5. how do courts determine if offenseive?

Back 32

1. assault-all actions before punch (invoking fear of injury)
battery-all actions after punch
2. both I
3. assult is worse
4. no, ex. clothing ripped
5. reasonable person standard

Front 33

defenses to assault and battery(2)

-state and ex.

Back 33

1. consent ex./wrestling
2. self-defense
must prove: in danger, and only used necessary force

Front 34

false imprisonment

1. def
2. ex.
3. defenses

Back 34

1. interferes w freedom to move without consent
2. shoplifters
3. probable cause (under reasonable person standards)

Front 35

defamation

1. I or UI?
2. different kinds (2)
3. elements of (4)
4. ex

Back 35

1. Intentional

2. libel-written
slander-orally said

3. 1. must be false
2. harm someone;s reputation
3. communicated to a 3rd party
4. involve an injury

4. ridiculous news articles (alien baby)

Front 36

defenses to defamation (4)

-state and ex.

Back 36

1. opinion
2. public personalities (not actual malice though) because celebrities accept the public eye
3. you have the privilege to say it (1. absolute-ex. judges 2. qualified-ex. employee evaluations)
4. it's the truth

Front 37

ridiculous news articles

1. what is the lawsuit brought up?
2. who wins usually, and why?
3. exception example

Back 37

1. defamation-harms a person's reputation
2. news wins-bc can't prove injury
3. celebrity was HUGE advocate of not drinking. news page showed her wasted. she won!

Front 38

slander and libel defamation

1. need proof of special damages?
2.why?

Back 38

1. slander-need proof
libel-do not need proof

2. slander is more temporary, and libel is not.

Front 39

invasion of privacy

1. U or UI?
2. 4 acts that constitute under this (state and example)
3. test used?

Back 39

1. Int.
2. 1) commercial expliotation-identity theft for commercial uses.
2)intrusion- looking into personal affairs ex./looking in someone's briefcase
3)false light-publishing info that makes them look bad ex./ extremely exaggerated story that leads to another story
4. disclosure of private embarassing facts- true or false, society finds it embarassing ex./newpaper publishes financial statements

3. reasonable person test

Front 40

appropriation

1. def
2. ex.

Back 40

1. using someone's identity (name, charactericstics, etc) for the benefit of the user.
2. ex./vanna white vs. samsung commercial she is famous for her pose, samsung copies it w/o her permissions. white wins!
ex./ lil debbie->lil doobie shirts

Front 41

fradulent misappropriation

1. def? I or UI?
2. opinion? relied on? ex.

Back 41

1. I, intentionally lie to someone to 1)enter contract or 2) buy product
2. not opinion, yes relied upon!
ex./ 'i am the best microwave we have' vs. 'this microwave can also be an oven.' (when it can't)

Front 42

business torts involving wrongful interference

1. state and 3 elements needed
2. describe and ex.
3. defense

Back 42

1. contract
1) a contract btwn 2 parties
2)3rd party KNOWS about contract
3) 3rd party INTENTIONALLY induces a party to breach the contract!
2. relationship- competition vs. predatory behavior
ex./ footlocker employee can't stand in front of finish line store to lure customers over.
3. must be in the spirit of competition/circumstance dependability

Front 43

trespass to land

1. ex.

Back 43

1. flying too low above someone's property, drilling underground, etc.

Front 44

attractive nuisance doctrine

Back 44

involved in trespass of land. says that you must make difficult or guard areas that attract for example children.

Front 45

conversion

what is it? ex.

Back 45

possess or use personal property of another without permission

ex. buying a stolen product.

Front 46

disparagement of property

define and ex.(2)

Back 46

when you lie about property to negatively impact economy

1. ex./ sony publicizing that apple's headphones cause cancer
2. ex./ grimm cardealer publicizes that joe cardealer sells stolen cars

Front 47

negligence

4 requirements and example

Back 47

4. defendant's breach caused plaintiff's injury (sam was pushed, not tripping on ground)

Front 48

assumption of the risk

ex.

Back 48

-defense to negligence
-voluntary assumption or knowledge of risk

ex. bungee jumping

Front 49

superseding cause

ex.

Back 49

-defense to negligence
-unforseeable event happens bc of your action

ex./ u have a car accident. nearby, while waiting for police, plane crashes and causes lots of damage. NOT responsible for plan damages, only car accident

Front 50

1.comparative negligence

2. contributory negligence

Back 50

-both defense to negligence

1. most states use...split up damages between parties

2. if >50% of the injury is faulted to person who got injured (plaintiff), NOT HEARING CASE!

Front 51

last chance clear doctrine

ex.

Back 51

-defense to negligence

-you have to do everything you can to minimize damages

ex./driving purposely on one-ways so ppl will hit you

Front 52

statue of limitation
1. 2 elements
2. exception (1)
3. IA limitation time

Back 52

-defense to negligence

1. time starts when the the plaintiff KNEW -or- SHOULD HAVE known of injury (doc leaves medical instrument inside you!)
2.murder!
3. 2 years

Front 53

res ipsa loquitar

1. meaning
2. burden of proof
3. ex.

Back 53

1. the facts speak for themselves
2. on defendent to prove NOT negligent
3. ex/ you get surgery and following that surgery you have nerve damage...its the doctor's burden to proof he did NOT do that

Front 54

negligence per se

1. meaning and def.
2. what does plaintiff have to prove?
3. ex.

Back 54

1. 'in or of itself' if you break a statute and cause the harm it was supposed to prevent
2. plaintiff only has to prove you broke that statue
3. you drive unattentive (its a rule to drive attentive), you get in car accident. they get hurt.

Front 55

danger invites rescue doctrine

ex.

Back 55

ex./swerving a head-on collision

the person you're person gets blame

Front 56

good samaritan laws

ex.

Back 56

CPR chest compreesions

...meant to protect medical ppl

Front 57

dram shop act

Back 57

bartenders held liable of very drunk person if they serve very drunk person.

Front 58

federal can spam act (2003)

Back 58

-control unsolicited comercial email spam
-protect our email addresses from server lists

Front 59

strict liability

1.definition
2. ex.

Back 59

1. liability without fault..aka you're working with something that is assumed to be highly dangerous
2. ex./ dynamite blasting with extreme care... still negligence bc its so dangerous

Front 60

product liability

express warranties vs. implied

1. difference
2. who creates them?

Back 60

1. express- ex/quality, description
implied-ex./ this product will work for what it's intended to do
2. UCC

Front 61

strict product liability

burden of proof on??

Back 61

manufacturer!

Front 62

3 product defects

Back 62

1. manufacturing defects-ex./glass bottle made too thin and explodes
2. design defects- design itself was improper, but plaintiff must show a reasonable alt. design!
3.inadequate labels-duh

Front 63

statutes of repose

Back 63

set outer time limits on product liability actions.. run longer than statutes of limitation