Lgst Test 1

Front 1

Schools of Jurisprudence

Back 1

Natural Law, Command, Historical, Sociological, Critical Legal Studies, Law and Economics, Common Law, Civil Law

Front 2

Schools of Ethics

Back 2

Fundamentalism, Deontology, Social Justice Theory, Teleology, Utilitarianism, Ethical Relativism

Front 3

EXAMPLE: INCEST, BESTIALITY, COMMIES

HOBBES STATE OF NATURE, SOCIAL CONTRACT

SOMETIMES GOES BOTH WAYS: HOMOSEXUAL CHIMPS

PAT ROBERTSON, NAGIN

Back 3

Natural Law

Front 4

PURPOSE OF LAW IS TO PRESERVE POWER OF RULING CLASS OR GROUP. LAW CHANGES WHEN RULING CLASS CHANGES.

Back 4

Command School

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LAW AS THE AGGREGATE RESULT OF HISTORICAL FORCES AND DEVELOPMENT THEREOF.

LAW AS EVOLUTIONARY PROCESS, GRADUALLY CHANGES AS RESULT OF SOCIETAL CHANGES.

Back 5

Historical School

Front 6

THE “REALISTS”.
LAW AS THE INSTRUMENT OF SOCIAL CHANGE BASED ON SOCIOLOGICAL GOALS.

USING TORT SYSTEM AS METHOD OF INCOME
REDISTRIBUTION

Back 6

Sociological School

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RELATED TO FRANKFURT SCHOOL

COMMUNISTS FROM FRANKFURT, FLED HITLER,
FOUNDED OR AT LEAST INSPIRED “NEW LEFT”

Back 7

Critical Legal Studies

Front 8

JUDGE POSNER, U.S. 7TH CIR. CT. OF APPEALS, UNIV. OF CHICAGO PROFESSOR, GENIUS

CORRECT LEGAL OUTCOME IS THAT WHICH BRINGS MOST ECONOMIC BENEFIT, MARKET EFFICIENCY, TO SOCIETY

Back 8

Law and Economics

Front 9

BASIS OF AMERICAN LAW

Back 9

Common Law

Front 10

BASED ON ROMAN LAW
2 FAMILIES: FRENCH AND GERMAN
CODE NAPOLEON 1804
BUEGERLICHES GESETZBUCH 1896

Back 10

Civil Law

Front 11

System of Courts a Case Goes Through

Back 11

Federal District Court, Appealed to U.S. Court of Appeals, Writ of Certiorari to US Supreme Court

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Writ of Certiorari

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an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review.

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SOCIAL RESPONSIBILITY OF BUSINESS

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THERE IS NO INHERENT RIGHT TO LIMITED LIABILITY.
THEREFORE, THERE IS NO INHERENT REASON SOCIETY CAN NOT IMPOSE SOCIAL RESPONSIBILITY ON CORPORATIONS.

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MAXIMIZE PROFITS THEORY

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SOCIAL RESPONSIBILITY OF BUSINESS IS TO MAX PROFITS WITHIN RULES OF THE GAME

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MORAL MINIMUM THEORY

Back 15

MAKE PROFIT WHILE AVOIDING HARM TO OTHERS

DUTY OF SOCIAL RESPONSIBILITY OF CORP IS TO MINIMIZE OR CORRECT HARM TO OTHERS
CORRECTING HARM MAY MEAN COMPENSATION

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STAKEHOLDER INTEREST THEORY

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CORPORATION SHOULD CONSIDER INTERESTS OF ALL STAKEHOLDERS, E.G. EMPLOYEES, SUPPLIERS, CUSTOMERS, CREDITORS, AND THE COMMUNITY,
NOT JUST SHAREHOLDERS

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CORPORATE CITIZENSHIP THEORY

Back 17

LOGICAL EXTENSION OF STAKEHOLDER INTEREST THEORY.

CORPORATION HAS RESPONSIBILITY TO DO GOOD.
SOCIAL POWER IS GIFT BESTOWED ON CORPS, CORPS OWE DEBT TO SOCIETY, SHOULD USE SOCIAL POWER TO GOOD ENDS.

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Problem with Corporate Citizenship Theory

Back 18

CORPS HAVE LIMITED FUNDS; WHY WOULD SHAREHOLDERS INVEST?

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Role of Government in Ethics

Back 19

GOVT PASS LAWS, SET MORAL MINIMUM

ADDITIONALLY, FEDERAL GOVT IS WORLD’S LARGEST CUSTOMER.

GOVT PASS FALSE CLAIMS ACT, ORIGINALLY DURING CIVIL WAR.
AMENDED 1986.

PROVIDES FOR WHISTLEBLOWERS

Front 20

Qui Tam

Back 20

Involved w/ role of government in ethics, literally meaning HE SUES AS MUCH FOR THE KING AS FOR HIMSELF

Front 21

Sources of Law

Back 21

CONSTITUTION TREATIES
STATUTES
ADMINISTRATIVE REGULATIONS

EXECUTIVE ORDERS

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What do Appellate Courts look at and what don't they?

Back 22

REVIEW RECORD, LOOK AT ERRORS OF LAW
( FACTS ONLY IF “MANIFESTLY ERRONEOUS”)

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FEDERAL QUESTION

Back 23

the situation in which a United States federal court has subject matter jurisdiction to hear a civil case because the plaintiff has alleged a violation of the Constitution, laws, or treaties of the United States.

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Plurality Decision

Back 24

the largest number of votes to be received by any candidate or proposition when three or more choices are possible, not necessarily majority

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DIVERSITY JURISDICTION

Back 25

he situation in which a U.S. (federal) district court has subject matter jurisdiction to hear a civil case because the parties are "diverse" in citizenship, which generally indicates that they are citizens of different states

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Conditions for Diversity Jurisdiction

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$75,000.00 IN DISPUTE; COMPLETE DIVERSITY BETWEEN THE SIDES OF THE VERSUS

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2 types of jurisdiction required by courts`

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1) SUBJECT MATTER
2) IN PERSONAM (“PERSONAL”) P. 101, IN REM, QUASI IN REM

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When does venue come into play?

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WHEN TWO OR MORE COURTS HAVE SUBJECT MATTER AND IN PERSONAM JURISDICTION

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Pleadings

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Complaint, answer, reply

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Complaint Requirements

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1) paritcular facts giving rise to dispute, 2) legal reason why plaintiff is entitled to remedy,
3) prayer, request for relief

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Answer

Back 31

the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant

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Answer establishes...

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1) which allegations (cause of action in civil matters) set forth by the complaining party will be contested by the defendant,
2) All the defendant's defenses

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Affirmative Defense

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Admits the defendant has acted in a certain way but claims that defendant's conduct was not the real or legal cause of harm to plaintiff or conduct is excused for some reason (Ex. Self-defense)

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Counterclaim

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Legal claim by defendant in answer against the plaintiff, need not be related to original claim by plaintiff

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Default Judgement

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a binding judgment in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court.

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Cross-Claim

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a claim brought against a co-party in the same side of a lawsuit. That is, a plaintiff brings a claim against another plaintiff, or a defendant brings a claim against another defendant.

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Third-Party Complaint

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A petition filed by a defendant against a third party (not presently a party to the suit) which alleges that the third party is liable for all or part of the damages plaintiff may win from defendant.

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Intervention

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a procedure to allow nonparties to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for this is that a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard

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Consolidation

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When a number of actions are brought on the same policy, it is the constant practice, for the purpose of saving costs, to consolidate them. by a rule of court or judge's order, which restrains the plaintiff from proceeding to trial in more than one, and binds the defendants in all the others to abide the event of that one; but this is done upon condition that the defendant shall not file any bill inequity, or bring any writ of error for delay

Front 40

Parts of Discovery

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INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS, DEPOSITIONS, REQUESTS FOR ADMISSIONS, PHYSICAL AND MENTAL EXAMINATIONS, REQUESTS FOR INSPECTION,SUBPOENAS

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Depositions

Back 41

Written or oral questions asked of any person who may have helpful information about the facts of the case

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Interrogatories

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Written questions to the parties in the case and their attorneys

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Subpoenas

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a written command to a person to testify before a court or be punished.

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MOTION FOR JUDGMENT ON THE PLEADINGS

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Can be filed immediately after complaint and answer have been filed, motion to dismiss, argues that the complaint alone demonstrates that the action is futile

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MOTION FOR SUMMARY JUDGMENT

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Motion to dismiss when information or documents other than the pleadings are involved, cannot appeal denial of this, only granted if evidence clearly establishes there are no disputed issues of material fact and that the party who requested is entitled to recover as a matter of law

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Partial Summary Judgement

Back 46

Granting a motion for summary judgment on certain issues of a trial but allowing the other issues to proceed to trial

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Motion in Limine

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motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial

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Trier of Fact

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Jury

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Trier of Law

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Judge

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Voir Dire

Back 50

the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury.

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Preemptory Challenges

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Challenges of Jury, limited

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Challenge for Cause

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Challenges of Jury, unlimited

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Who has Burden of Proof?

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Plaintiff

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No leading question

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Direct Examination

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Lead all you want

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Cross Examination

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Motion for Directed Verdict

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At close of presentation of evidence, asserts other side has not produced enough evidence to support legal claim or defense alleged, asks judge to take verdict away from jury and direct verdict be entered in favor of party making the motion

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JNOV

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Immediately after jury has rendered verdict, made by losing party, basically says evidence of prevailing party is so weak no reasonable jury could have resolved the dispute in that party's favor

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Appealing party, opposing party

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Appellant, Appellee

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APPEAL BY AN APPELLEE AGAINST AN APPELLANT

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Cross Appeall

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Process of Trial

Back 60

Opening Statements, Plaintiff's case, Direct x, cross x, redirect, recross, defendant's case, rebuttal, closing arguments (p,d,p), Motion for directed verdict, jury deliberation, verdict, JNOV, Appeal

Front 61

Categories of Torts

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1) Intentional
2) Unintentional (Negligence)
3) Strict Liability

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Tort Damages

Back 62

MEANS COMPENSATORY DAMAGES; MEANT TO COMPENSATE VICTIM FOR INJURY SUFFERED.

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Punitive Damages

Back 63

MEANT TO PUNISH TORTFEASOR IN CASES OF INTENTIONAL TORTS OR STRICT LIABILITY.

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Intentional Torts

Back 64

Assault, Battery, Transferred Intent Doctrine, False Imprisonment, Kidnapping, Defamation of Character, Misappropriation of Right to Publicity, Invasion of Right to Privacy, Intentional Infliction of emotional distress, malicious prosecution, abuse of process

Front 65

Intentional Torts Against Property

Back 65

Real Property, Personal Property, Trespass to Land, Trespass to Personal Property, Conversion of Personal Property

Front 66

Assault

Back 66

1) THREAT OF IMMEDIATE HARM OR
2) ANY ACTION THAT AROUSES REASONABLE SUSPICION OF IMMINENT HARM

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Battery

Back 67

UNAUTHORIZED TOUCHING

DIRECT CONTACT IS UNNECESSARY. YOU CAN THROW SOMETHING.

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YOU INTEND TO INJURE ONE PERSON BUT MISS AND INJURE ANOTHER.

Back 68

TRANSFERRED INTENT DOCTRINE

Front 69

FALSE IMPRISONMENT

Back 69

INTENTIONAL CONFINEMENT OR RESTRAINT OF ANOTHER PERSON WITHOUT AUTHORITY OR JUSTIFICATION AND WITHOUT THAT PERSON’S CONSENT

Front 70

MERCHANT PROTECTION STATUTES

Back 70

ALLOW MERCHANTS TO STOP, DETAIN, AND INVESTIGATE SUSPECTED SHOPLIFTERS WITHOUT BEING CHARGED FOR FALSE IMPRISONMENT IF:

1) REASONABLE GROUNDS FOR SUSPICION
2) DETAINED FOR REASONABLE TIME
3) INVESTIG CONDUCTED IN REASONABLE MANNER

Front 71

Defamation of Character

Back 71

UNTRUE STATEMENT OF FACT (OPINION NO COUNT)
INTENT OR UNINTENT PUBLISHED TO 3P

Front 72

MISAPPROPRIATION OF RIGHT TO PUBLICITY

Back 72

A PERSON HAS EXCLUSIVE RIGHT TO CONTROL AND PROFIT FROM USE OF HIS NAME AND IDENTITY DURING HIS LIFETIME (SOME STATES AFTERWARDS AS WELL)

Front 73

INVASION OF THE RIGHT TO PRIVACY

Back 73

VIOLATION OF RIGHT TO LIVE LIFE WITHOUT UNWARRANTED OR UNDESIRED PUBLICITY

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Back 74

EXTREME AND OUTRAGEOUS CONDUCT
INTENTIONALLY OR RECKLESSLY CAUSES
SEVERE EMOTIONAL DISTRESS

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MALICIOUS PROSECUTION

Back 75

ELEMENTS:
DEF INSTITUTE ORIG SUIT
NO PROBABLE CAUSE; SUIT WAS FRIVOLOUS
BROUGHT WITH MALICE
ORIG SUIT TERMINATED IN FAVOR OF (CURRENT) PLAINTIFF
CURRENT PLAINTIFF SUFFERED INJURY AS RESULT OF ORIGINAL SUIT

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ABUSE OF PROCESS

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(1) PROCESS WAS USED;

(2) FOR AN ULTERIOR OR ILLEGITIMATE PURPOSE;

(3) RESULTING IN DAMAGE.

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Real Property

Back 77

: LAND AND ANYTHING ATTACHED TO LAND
(IMMOVABLE PROPERTY)

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Personal Property

Back 78

THINGS THAT ARE MOVABLE, E.G. CLOTHES, BOOKS AUTOMOBILES, PETS, ETC.

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Trespass to Land

Back 79

INTERFERENCE WITH AN OWNER’S RIGHT TO EXCLUSIVE POSSESSION OF LAND

Front 80

TRESPASS TO PERSONAL PROPERTY

Back 80

INJURY TO PERSONAL PROPERTY OR INTERFERENCE WITH ENJOYMENT THEREOF
(E.G. BREAK CAR WINDOW)

Front 81

CONVERSION OF PERSONAL PROPERTY

Back 81

DEPRIVING OWNER OF USE AND ENJOYMENT OF PERSONAL PROPERTY BY TAKING OVER SUCH PROPERTY AND EXERCISING OWNERSHIP RIGHTS OVER IT.

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Negligence

Back 82

THE OMISSION TO DO SOMETHING WHICH A REASONABLE MAN WOULD DO, OR DOING SOMETHING WHICH A PRUDENT AND REASONABLE MAN WOULD NOT DO

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Elements of Negligence

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1) THE DEFENDANT OWED A DUTY OF CARE TO PLAINTIFF

2) THE DEFENDANT BREACHED THIS DUTY OF CARE

3) PLAINTIFF SUFFERED INJURY

4) DEFENDANT’S NEGLIGENT ACT CAUSED THE PLAINTIFF’S INJURY

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DUTY-RISK ANALYSIS:

Back 84

DUTY OF CARE REFERS TO OBLIGATION WE ALL OWE ONE ANOTHER:
DUTY NOT TO CAUSE ANY UNREASONABLE HARM OR RISK OF HARM

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Causation in Fact

Back 85

Plaintiff must prove that he or she would not have been harmed but for the defendant's negligent conduct

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Proximate Cause

Back 86

Defendant had a duty to protect the particular plaintiff against the particular conduct that injured him or her, number one test is forseeablility

Front 87

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Back 87

1) RELATIVE KILLED OR INJURED BY DEFENDANT;
2) PLAINTIFF SUFFERED SEVERE EMOTIONAL DISTRESS; AND
3) P’S MENTAL DISTRESS RESULT FROM A SENSORY AND CONTEMPORANEOUS OBSERVANCE OF THE ACCIDENT (OR ITS IMMEDIATE AFTERMATH)

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PROFESSIONAL MALPRACTICE

Back 88

REASONABLE PROFESSIONAL STANDARD: PROFIES MUST USE REASONABLE CARE IN PROVIDING THEIR SERVICES

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Negligence Per Se

Back 89

VIOLATION OF A STATUTE THAT CAUSES AN INJURY

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Elements of Negligence Per Se

Back 90

1) STATUTE EXISTED
2) STATUTE WAS ENACTED TO PREVENT THE TYPE OF INJURY SUFFERED
3) PLAINTIFF WITHIN CLASS OF PERSONS MEANT TO BE PROTECTED BY THE STATUTE

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RES IPSA LOQUITUR

Back 91

THE THING SPEAKS FOR ITSELF

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Elements of Res Ipsa Loquitur

Back 92

1) D HAD CONTROLOF INSTRUMENTALITY OR SITUATION THAT CAUSED P’S INJURY
2) INJURY WOULD NOT HAVE OCCURRED BUT FOR SOMEONE’S NEGLIGENCE

Front 93

GOOD SAMARITAN LAWS

Back 93

DRS, NURSES, LAY PEOPLE TRAINED IN CPR protected FROM ORDINARY NEGL, BUT NOT GROSS NEGL OR RECKLESS OR INTENT CONDUCT

Front 94

DRAM SHOP ACTS

Back 94

MAKE TAVERNS AND BARTENDERS LIABLE FOR INJURIES CAUSED BY PATRON TO WHOM BAR SERVED TOO MUCH ALCOHOL, WHICH MEANS ENOUGH TO MAKE CLEARLY INTOXICATED, OR WHO WAS ALREADY CLEARLY INTOXICATED.

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GUEST STATUTES

Back 95

IF DRIVER PICK UP GUEST OR HITCHHIKER FOR NO COMPENSATION, NO LIABLE FOR ORDINARY NEGL.
IF DRIVER IS PAID COMP, THEN STILL LIABLE FOR ORDINARY NEGL.
ALWAYS LIABLE FOR WANTON AND GROSS NEGL.

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FIREMAN’S RULE

Back 96

FIREFIGHTER WHO INJURED WHILE FIGHTING FIRE NO CAN SUE PARTY WHOSE NEGL CAUSED FIRE.
EXTENDED TO POLICE, AND OTHER GOVT WORKERS.
RATIONALE: 1) PEOPLE MIGHT NOT HELP IF COULD BE LIABLE;
2) FIREFIGHTERS ET AL RECEIVE SPECIAL TRAINING
3) HAVE RETIREMENT AND MEDICAL BENE’S PAID FOR BY PUBLIC

Front 97

DANGER INVITES RESCUE DOCTRINE

Back 97

INJURED RESCUER CAN SUE PERSON WHO CAUSED DANGEROUS SITUATION

Front 98

SOCIAL HOST LIABILITY RULE

Back 98

HOST LIABLE IF GUEST AT SOCIAL FUNCTION GET INTOXICATED AND CAUSE INJURY TO OTHERS OR TO SELF.

Front 99

TRESPASSERS

Back 99

OWNER OWE NO DUTY ORDINARY CARE.
OWNER DOES OWE DUTY NOT TO WILLFULLY OR WANTONLY INJURE A TRESPASSER. E.G. CAN’T SET TRAPS

Front 100

Defenses vs. Negligence

Back 100

SUPERSEDING OR INTERVENING EVENT, ASSUMPTION OF THE RISK COMPARATIVE NEGLIGENCE

Front 101

UNFAIR COMPETITION

Back 101

Special Business Tort, ELEMENTS OF PALMING OFF:
1) D USE P’S LOGO, MARK, ETC.; AND
2) LIKELIHOOD OF CONFUSIONAS TO SOURCE OF PRODUCT

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DISPARAGEMENT

Back 102

1) D MADE UNTRUE STATEMENT ABOUT P’S PRODUCTS, SERVICES, BUSINESS REPUTATION:
2) D PUBLISHED THIS UNTRUE STATEMENT TO 3P
3) D KNEW STATEMENT NOT TRUE; AND
4) D MADE STATEMENT MALICIOUSLY (I.E. WITH INTENT TO INJURE P).

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FALSE ADVERTISING

Back 103

UNTRUTHFUL COMPARATIVE ADVERTISING CONSTITUTES DISPARAGEMENT AND VIOLATES SECTION 43(a) OF LANHAM ACT, FED STATUTE WHICH PROHIBIT FALSE AND MISLEADING ADVERT.
UNDER LANHAM ACT, PARTY CAN OBTAIN INJUNCTION AND RECOVER DAMAGES

Front 104

INTENTIONAL MISREPRESENTATION (FRAUD)

Back 104

TORTFEASOR MADE A FALSE REPRESENTATION OF A MATERIAL FACT.
2) TORTFEASOR HAD KNOWLEDGE REPRESENTATION WAS FALSE AND INTENDED TO DECEIVE INNOCENT PARTY (I.E. SCIENTER).
3) INNOCENT PARTY RELIED ON REPRESENTATION.
4)INNOCENT PARTY WAS INJURED (SUFFERED DAMAGES).

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INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS

Back 105

) VALID, ENFORCEABLE K BETWEEN CONTRACTING PARTIES
2) 3P KNOWLEDGE OF THIS K
3) 3P INDUCEMENT OF BREACH OF K

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BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

Back 106

GOOD FAITH REQUIRED IN CONTRACTS.
TORT IF NO ACT IN GOOD FAITH, DAMAGES RECOVERABLE

Front 107

Strict Liability

Back 107

LIABILITY WITHOUT FAULT

Front 108

Elements of Strict Liability

Back 108

1) CERTAIN ACTIVITIES PLACE PUBLIC AT RISK OF INJURY EVEN IF REASONABLE CARE IS TAKEN; AND
2) PUBLIC SHOULD HAVE SOME MEANS OF COMPENSATION IF SUCH INJURY OCCURS.