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68 Cards in this Set
- Front
- Back
Supremacy clause
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when the Federal government and a state government attempt to regulate the same thing, Federal law preempts (trumps) state law
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Commerce clause
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“The Congress shall have Power … to regulate Commerce … among the several States.”
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preliminary injunction
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Preliminary injunctions are meant to keep parties from doing irreversible damage between the beginning and the end of litigation
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controlling authority
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your court or a court that hears appeals from your court
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persuasive authority
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comes from lower courts and other courts that could not hear appeals from your court
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impact rule
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Exists to provide limiting condition on emotional distress damages
Generally, you have to suffer injury as well as impact to collect damages |
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certified question
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Question sent mid-case to highest court by a lower court
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textualist (interpretation)
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The statute is the thing, not the “intent”
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A court must have:
(jurisdiction) |
-Subject matter jurisdiction
-And either in personam (personal) or in rem jurisdiction |
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Federal district courts need (jurisdiction)
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-Federal question jurisdiction
---Case arises under federal law -Or diversity jurisdiction ---Case is between citizens of different states ---And contested amount > $75,000 |
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Personal jurisdiction
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State courts of general jurisdiction exercise personal jurisdiction based on defendant’s residence, location, or activities in the court’s home state
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In rem jurisdiction
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Old-fashioned; based on location of a piece of property
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minimum contacts
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determine when it is appropriate for a court in one state to assert personal jurisdiction over a defendant from another state; "could reasonably expect to be haled[1] into court" in that state
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Purposeful availment
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This requirement is satisfied if the defendant "has taken deliberate action" toward the forum state.
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removal
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If plaintiff brings case in state court, defendant may remove it to federal court
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civil procedure
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rules governing how cases proceed
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service of process
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"summons" defendant to appear in court
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complaint
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plaintiff declares her claim
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answer
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-Defendant affirms or denies plaintiff’s allegations point-by-point
- Defendant offers affirmative defenses - Defendant makes possible counterclaim |
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reply
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plaintiff rebuts defendant's allegations
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reasons for motions to dismiss
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- failure to state a claim
- lack of jurisdiction or venue - inadequate service of process |
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discovery
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Permits each party to request broad swaths of potentially relevant information from the other
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Interrogatories and requests for admission
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Written requests for opposing party to answer questions or make admissions in writing
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Deposition
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Out-of-court, in-person examination of witness or opposing party
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Requests for production
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Wide requests for documents
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Summary judgment
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Judgment as a matter of law: no trial
No “genuine issue of material fact” |
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directed verdict
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an order from the judge presiding over a jury trial that one side or the other wins. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary.
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JNOV
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Judgment notwithstanding the verdict
Judge issues reversal of jury verdict if no reasonable jury could have made that verdict |
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class actions
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Involve too many plaintiffs to go forward as “named plaintiffs”
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____ have original jurisdiction over large diverse class actions (>$5 million)
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federal district courts
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arbitration
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simplified trial, arbitrator is "judge", awards are binding under FAA
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tort
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any civil wrong that is not a breach of contract
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3 basic types of tort
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intent, negligence, strict liability
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compensatory damages
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make the plaintiff whole
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punitive damages
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punish really bad behavior
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Recklessness can bring ________ on a negligence claim
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punitive damages
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battery
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intentional
offensive Touching without consent |
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intent
(in battery) |
Intent to cause the touching
Or intent to provoke a reasonable apprehension of the touching can be transferred |
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assault
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Intentional
provocation of reasonable apprehension of imminent battery |
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Intentional Infliction of Emotional Distress
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Intentionally or recklessly causes severe emotional distress
Conduct is extreme and outrageous |
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false imprisonment
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intentional confinement
for an appreciable time against the plaintiff's consent |
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defamation
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1. unprivileged
2. publication of 3. false and defamatory 4. statement of fact 5. of and concerning the plaintiff 6. causing damages |
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libel
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harmful statement in a fixed medium, especially writing
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slander
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harmful statement in a transitory form, especially speech
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libel damages are _____. slander _______.
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presumed; special damages must be proved
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slander per se
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1. felony or moral turpitude crime
2. loathsome illness 3. professionally incompetent or malfeasant 4. serious sexual misconduct |
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absolute privileges (defamation)
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Judicial proceedings
Floor of the legislature Marital &c. |
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conditional privileges (defamation)
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1. information affects some legitimate, important interest – to the publisher, the listener, etc.
2. publishing the information will help protect the interest lawfully |
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defamation suits by public officials and general-purpose public figures:
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-must prove actual malice
-by clear and convincing evidence |
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defamation suits by limited-purpose public figures
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must prove malice with respect to role in the debate
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If you want presumed or punitive damages (in defamation case), you need to _____.
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show malice, by clear and convincing evidence
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Intrusion on solitude or seclusion
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1. Reasonable expectation of privacy
2. highly offensive to reasonable person |
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Public disclosure of private facts
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Must be highly offensive to reasonable person
Truth is no defense |
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false light publicity
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true facts cast in misleading way
-highly offensive to reasonable person |
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right of publicity
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1. plaintiff used name, picture, etc. as symbol of identity
2. without consent 3. with intent to gain commercial advantage |
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elements of negligence
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1. duty
2. breach of duty 3. causation of injury |
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"BPL" test
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B= burden to prevent harm
P= probability of harm occurring L= liability if harm occurs If B < P*L, then failure to undertake the burden is a breach of duty |
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Respondeat superior
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Employee screws up on the job, employer covers the cost
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Negligence per se
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Violation of law
-Plaintiff must be within class of people protected by the law -And the injury must be the sort the law was intended to prevent |
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Negligent infliction of emotional distress
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It’s just a negligence case where someone is trying to collect for emotional damage, but the impact rule applies
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"contructive"
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a word lawyers put in front of stuff that didn’t actually happen.
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actual cause
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"but-for"
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proximate cause
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Foreseeable outcome?
“Natural and probable” outcome, or a weird one? |
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superseding cause
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which is an event which occurs after the initial act leading to an accident and substantially causes the accident
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Res ipsa loquitur
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"the thing speaks for itself"
e.g. barrel falls out of warehouse |
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contributory negligence
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(old) It applies to cases where a plaintiff has, through his own negligence, contributed to the harm he suffered.
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comparative negligence
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damages are apportioned according to fault
-mixed: plaintiff <50% -pure: plaintiff can be >50% |
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strict liability
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liability without consideration of fault
- ultrahazardous activities - defective and unreasonably dangerous products |