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132 Cards in this Set

  • Front
  • Back
Civil Law System
Previous court cases are not binding on judges
Are not forced to follow past ruling
Common Law (English System)
Follows precedent
Constitution establishes
Constitution is what government can’t do

What we can do is implied
Set aside powers for federal and state
General frame work of government
States have “police power” to create local or specific laws
Commerce Clause
Give federal government to regulate commerce with foreign countries, states, or native tribes
Prevent states from
creating new currency
trade wars
tariffs
Interpreted over the years
1st Case
Trying to control how much wheat he could grow
Federal Law controlling how much wheat can he grow constitutional?
Decided: They can control how much is grown
If everyone grew as much as they could, the market would be minimized and would effect interstate commerce
2nd Case
George man not allowing black people in hotel
If people cannot find a place to stay, it can effect commerce
If states want to impose regulations on mud flaps
Balancing the rights
of the state to protect citizens of Iowa
the federal governments power to regulate interstate commerce
Federal Law controlling how much wheat can he grow constitutional?
Decided: They can control how much is grown
If everyone grew as much as they could, the market would be minimized and would effect interstate commerce
Georgia man not allowing black people in hotel
If people cannot find a place to stay, it can effect commerce
If states want to impose regulations on mud flaps
Balancing the rights
of the state to protect citizens of Iowa
the federal governments power to regulate interstate commerce
Bill of Rights
Protect citizens again actions of state/federal government
Cleveland concert at private concert venue
Told performer to turn anti-Bush shirt inside out
Not infringing on first amendment right because private venue
If a private citizen or corporation restricts rights, it does not break law
1st amendment: Commercial speech
Is it protected by 1st amendment?
Not same protection under 1st amendment rights (political)
Label on beer can where frog was giving middle finger
New York State Liquor Authority was against it
Court’s test to determine if the corporation is having their rights infringed upon
3 criteria
Government has substantial interest in regulating ad speech
Did have interest
Action advancing interest?
yes getting rid of frog
Unnecessarily far?
yes. too far. outright ban
could have made ad less intrusive, not total ban
Free speech is not unlimited (limited)
cannot defame reputation
induce panic
threatening language
Church protests military funerals
Father of death solider sued Church
Church won case (in Supreme Court), 1st amendment right to protest
Lying about military honors
overturned law that did not allow people to lie about military honors
Separation of church and state
Establishment clause
No official government religion

Free exercise clause
person does not have to practice
4th amendment
unlawful search and seizure
probable cause
Moone Dr. Case (insurance fraud)
Gave up records freely, and was prosecuted for info on files
Appealed for illegal search and seizure
she lost as she gave consent
5th amendment
cannot take property without compensation
personal incrimination
14th amendment
due process
proper notice and opportunity to be heard
Litigation
Process of case
Purpose of process
to resolve disputes
Litigation process
Claim/Complaint -> answer (if none) -> default judgement - needs to be in court with jurisdiction

Answer
If fails to answer, default judgement to be issued
Files complaint in court that has jurisdiction
2 things that they have jurisdiction over
People (party) - over defendant
Subject matter
Can be sued where you have minimum context
2 things that they have jurisdiction over
People (party) - over defendant
Subject matter
4 kinds of cases that can go to federal court (if doesn’t fit the below, goes to state court)
Federal statutes (law)
Bankruptcy court
interstate crime
Diversity of citizenship
if claim is over $75,000
Federal constitution
Treaty
Concurrent jurisdiction
Removed from state to federal (based on bias of state-to move to federal)

Two or more courts have concurrent jurisdiction over a case if all of the courts have the power to hear it. Most notably, in the United States federal courts and state courts have concurrent jurisdiction to hear many types of actions. Similarly, a state court of general jurisdiction might have concurrent jurisdiction with specialized courts in the same state, such as family courts or small claims courts.

When multiple courts have concurrent jurisdiction over a claim, plaintiffs may deliberately pick the forum most favorable to them
Corporations minimum context
Where it is physically headquartered and operated
Where they incorporated
Where they sell / advertise
actively soliciting to customers in specific place
Motion
Filed into court by any party (plaintiff or defendant)
Defendant
Dismiss, jurisdiction
Order
Issued by court (judge)
To bring a lawsuit:
Need standing
reason to sue
sufficient state (harm)
Can appeal ruling
Appeal courts look for error of law in lower court
Will hear facts if the ruling in the bellow court was clearly erroneous
One appeal to decision is automatic (right)
After first appeal, the next appeals are discretionary to the court
for supreme court
Discovery
Find all useful information for the case
Jury selection: voir dire
Strategic
People make careers out of this
Each party is allowed to reject x number of jurors without cause
Can always reject jurors with cause
Any registered voters can be called
Case Problem 2.6
tmobile Class action suit
T Mobile said she could not make a class action suit, only do individual arbitration
Unless you could prove it was unconscionable, it can be disregarded
Tort
Wrongful action
Could be civil or criminal
Criminal
assault and battery
Civil
Defamation
OJ Simpson Case
Won case criminally
Beyond reasonable doubt
Lost civil case
Battery
Preponderance of the evidence
Strict liability (pg 94)
a person may be held liable, regardless of the degree of care exercised, for damages or injuries caused by her or his product or activity.
Defense to assault or battery
Consent
Self defense
Defense of property
Defense of property
Within reason
Cannot shoot someone for stealing your car
compensatory verses punative
Compensatory damages compensate for losses
Punitive damages punish wrongdoers and deter others from similar wrongdoings

Due process cause limits excessive punitive damages
Defamation
Wrongfully hurting a persons reputation
Need to establish (3):
defamation
False statement presented as fact (not an opinion)
injury and damage
Published
Verbal: Slander
Need to prove special damages
Written: Libel (permanent)
Difference is libel is permanent
Statements about a public figure
Harder for public figure to prove defamation
Need to prove that the person’s claims:
Had actual malice (intentional or reckless)
Knowledge of falseness of statement
McDonald’s G.B. Case (defamed in 3, not defamed in other 3)
Claimed MD sold heart damaging food: Not Defamatory
poisonous products: Defamatory
products increased the risk of cancer: Defamatory
contributed to starvation and deforestation: Defamatory
exploited employees: Not Defamatory
exploited children in advertising: Not Defamatory

M.D. spent $16,000,000 to win $61,000 in damages (lasted 314 days)
Freakanomics case
Were statements in email statements of fact or opinion
If not statements of fact, they are opinions, and are not defamatory
Claimed that guy paid to have his article published
Fact or not fact needs verification
Claimed that journal was not peer reviewed
Invasion of the rights of property
Appropriation of identity
intrusion into an individuals affairs or seclusion
false light
public disclosure of private facts
True, but don’t want it disclosed
Fraudulent misrepresentation
Hardest part of fraud to prove
intent
if you cant prove fraud, negligent misrepresentation is possible to prove
puffery (seller’s talk) is not actionable
fraud happens when you say something you know is not true
need fact to prove fraud
Landlord giving incorrect sq ft. and charging per squ ft
if they didn’t know, it is negligent misrepresentation
Wrongful interference with a contractual relationship
person interfering must not know that there is an established contract
Trespass
Land
Personal property
Conversion
took stuff without permission
accept stolen property
buy stereo for $500 stolen
to give back stereo to original owner or pay for it again
Criminal equivalent is theft
Negligence
Before being neg need a duty of care
Duty of care
Using reasonable person standard
breached duty of care
plaintiff suffered injury
injury caused by neg (from breach)
two parts of cause
proximate cause
foreseeable
causation in fact
“but for”
caused injury in effect
proximate cause
foreseeable
causation in fact
“but for”
caused injury in effect
To be found negligent
Duty of care
breach duty
suffered legally recognizable injury
injury caused by breach
Duty of care uses what standard
Using reasonable person standard
Can build a safer car, but it would cost too much
Low duty of care from car company
University is not blamed for underage drinking resulting in death
Low duty of care from car company
Contributory negligence
If you were negligent and were harmed, you have no right to collect reparations for damages
Comparative negligence
% based on fault
The person who collects in the one less at fault
As a result only collect the % of fault that you were not responsible for
20% at fault for $100 case, plaintiff gets to keep $80
Cannot be more than 50% at fault to collect damages
Duty of Care
Business owners duty to protect customers (warn)
Slipping on wet floor (sometimes shop owners fault)
Ohio Law

Duty of Care
Differentiates water’s risk and duty based on if it was tracked in (reasonable person would assume that the entry will be wet on rainy day) or was residual from cleaning (negligence)
Amount of time the water has been there is taken into account
Obvious risks provides exceptions
Signs warning of risk
Cannot blame land owner for damages suffered because you were forewarned
Ice and snow
Ohio law
Owners are not responsible for ice and snow
Assumption of risk
Knowledge of risk
Voluntary assumption
Sky diving class
take on risk knowingly and voluntarily
cannot sue company
Baseball game and get hit by a foul ball
On ticket, says anything can happen to you in the stadium and its not their fault
May pay even if they don’t need to for public relations
Negligence res ipsa loquitur (the facts speak for themselves)
Courts infer negligence
Defendants has to prove they were NOT negligent
Negligence per say (in or of itself)
Someone violates a statute, if you can prove it, then Plaintiff doesn’t have to prove anything further, they are negligent
Breaking speed limit and car accident
Good Samaritan
If you are going out to help someone you are not liable for injury resulting from the help
Saving someone from fire, and breaking their arm when saving them
Not your fault
Saving someone from choaking, break rib
Constitutional law
Constitutional law The law as expressed in the U.S. Constitution and the
various state constitutions. The U.S. Constitution is the supreme law of the land.
State constitutions are supreme within state borders to the extent that they do not
violate the U.S. Constitution or a federal law.
Statutory law
Laws or ordinances created by federal, state, and local legislatures and governing bodies. None of these laws can violate the U.S. Constitution or the relevant state constitutions.
Uniform laws, when adopted by a state legislature, become statutory law in that state.
Administrative law
The rules, orders, and decisions of federal, state, or local government administrative
agencies. Federal administrative agencies are created by enabling legislation enacted by the U.S.
Congress. Agency functions include rulemaking, investigation and enforcement, and adjudication.
Case law and common law doctrines
Judge-made law, including interpretations of constitutional
provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies. The common law-- the doctrines and principles embodied in case law-- governs all areas not covered by statutory law. (or agency regulations issued to implement various statutes)
Common law
Law that originated in medieval England with the creation of the king's courts, or curiae
regis, and the development of a body of rules that were common to (or applied throughout) the land.

Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals (as opposed to statutes adopted through the legislative process or regulations issued by the executive branch).[1]
Classification of Law'
Substantive law
Law that defines, describes, regulates, and creates legal rights and obligations.

Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments (in the criminal law), civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process.
Classification of Law'
Procedural law
laws that establish methods of enforcing rights established by substantive law.
Classification of Law
Criminal Law
Wrongs committed against the public as a whole.
Commerce clause
Expressly permits Congress to regulate commerce. That power authorizes the national government, at least theoretically, to regulate every commercial enterprise in the United States. Under their police powers, state governments may regulate private activities to protect or promote the public order, health, safety, morals, and general welfare.
Bill of Rights
The first ten amendments to the U.S. Constitution. They embody a series of protections for individuals—and in some cases, business entities—against various types of interference by the federal government. One of the freedoms guaranteed by the Bill of Rights that affects businesses is the freedom of speech guaranteed by the First Amendment. Also important are the protections of the Fifth and the Fourteenth Amendments, which provide that no person shall be deprived of “life, liberty, or property, without due process of law.”
The role of the judiciary
—the courts—in the American governmental system is to interpret and apply the law. Through the process of judicial review—determining the constitutionality of laws— the judicial branch acts as a check on the executive and legislative branches of government.
Jurisdiction
Before a court can hear a case, it must have jurisdiction over the person against whom the suit is brought or the property involved in the suit, as well as jurisdiction over the subject matter.
Limited versus general jurisdiction
Limited jurisdiction exists when a court is limited to a specific subject matter, such as probate or divorce. General jurisdiction exists when a court can hear any kind of case.
Original versus appellate jurisdiction
Original jurisdiction exists when courts have authority to hear a case for the first time (trial courts). Appellate jurisdiction exists with courts of appeals, or reviewing courts; generally, appellate courts do not have original jurisdiction.
Federal jurisdiction
Arises (1) when a federal question is involved (when the plaintiff’s cause of action is based, at least in part, on the U.S. Constitution, a treaty, or a federal law) or (2) when a case involves diversity of citizenship (citizens of different states, for example) and the amount in controversy exceeds $75,000.
Concurrent versus exclusive jurisdiction
Concurrent jurisdiction exists when two different courts have authority to hear the same case. Exclusive jurisdiction exists when only state courts or only federal courts have authority to hear a case.
Jurisdiction in cyberspace
Because the Internet does not have physical boundaries, traditional jurisdictional concepts have been difficult to apply in cases involving activities conducted via the Web. Gradually, the courts are developing standards to use in determining when jurisdiction over a Web site owner or operator located in another state is proper.
Venue
Venue has to do with the most appropriate location for a trial, which is usually the geographic area where the event leading to the dispute took place or where the parties reside.
Standing to sue—
A requirement that a party must have a legally protected and tangible interest at stake sufficient to justify seeking relief through the court system. The controversy at issue must also be a justiciable controversy—one that is real and substantial, as opposed to hypothetical or academic.
Trial courts
Courts of original jurisdiction, in which legal actions are initiated.
Trial courts
State
Courts of general jurisdiction can hear any case; courts of limited jurisdiction
include domestic relations courts, probate courts, traffic courts, and small claims courts.
Trial courts
Federal
The federal district court is the equivalent of the state trial court. Federal courts of limited jurisdiction include the U.S. Tax Court, the U.S. Bankruptcy Court, and the U.S. Court of Federal Claims.
Intermediate appellate courts
Courts of appeals, or reviewing courts; generally without original jurisdiction. Many states have an intermediate appellate court; in the federal court system, the U.S. circuit courts of appeals are the intermediate appellate courts.
Supreme (highest) courts
Each state has a supreme court, although it may be called by some other name; appeal from the state supreme court to the United States Supreme Court is possible only if the case involves a federal question. The United States Supreme Court is the highest court in the federal court system and the final arbiter of the U.S. Constitution and federal law.
Rules of procedure prescribe the way in which disputes are handled in the courts. Rules differ from court to court, and separate sets of rules exist for federal and state courts, as well as for criminal and civil cases. A sample civil court case in a state court would involve the following procedures:
Rules of procedure prescribe the way in which disputes are handled in the courts. Rules differ from court to court, and separate sets of rules exist for federal and state courts, as well as for criminal and civil cases. A sample civil court case in a state court would involve the following procedures:
The pleadings
Complaint
Filed by the plaintiff with the court to initiate the lawsuit; served with a
summons on the defendant.
The pleadings
Answer
A response to the complaint in which the defendant admits or denies the allegations made by the plaintiff; may assert a counterclaim or an affirmative defense.
The pleadings
Motion to dismiss
A request to the court to dismiss the case for stated reasons, such as the plaintiff’s failure to state a claim for which relief can be granted.
Pretrial motions (in addition to the motion to dismiss)—Motion for judgment on the pleadings
May be made by either party; will be granted if the parties agree on the facts and the only question is how the law applies to the facts. The judge bases the decision solely on the pleadings.
Pretrial motions (in addition to the motion to dismiss)—Motion for summary judgment
May be made by either party; will be granted if the parties agree on the facts. The judge applies the law in rendering a judgment. The judge can consider evidence outside the pleadings when evaluating the motion.
Discovery
The process of gathering evidence concerning the case. Discovery involves depositions (sworn testimony by parties to the lawsuit or witnesses), interrogatories (written questions and answers to these questions made by parties to the action with the aid of their attorneys), and various requests (for admissions, documents, and medical examinations, for example). Discovery may also involve electronically recorded information, such as e-mail, voice mail, word-processing documents, and other data compilations. Although electronic discovery has significant advantages over paper discovery, it is also more time consuming and expensive and often requires the parties to hire experts.
Pretrial conference
Either party or the court can request a pretrial conference to identify the matters in dispute after discovery has taken place and to plan the course of the trial.
Trial
Following jury selection (voir dire), the trial begins with opening statements from both parties’ attorneys. Following that, the plaintiff introduces evidence (including the testimony of witnesses) supporting the plaintiff’s position. The defendant’s attorney can challenge evidence and cross-examine witnesses. Then it’s the defendant’s turn to present evidence and testimony supporting the defendant’s position. Once both sides have finished, the attorneys present their closing arguments. Then come the judge’s instructions to the jury and the jury’s verdict.
Posttrial motions—Motion for judgment n.o.v. (“notwithstanding the verdict”)
Will be granted if the judge
is convinced that the jury was in error.
Posttrial motions—Motion for a new trial—
Will be granted if the judge is convinced that the jury was in error; can also be granted on the grounds of newly discovered evidence, misconduct by the participants during the trial, or error by the judge.
Appeal
Either party can appeal the trial court’s judgment to an appropriate court of appeals. After reviewing the record on appeal, the abstracts, and the attorneys’ briefs, the appellate court holds a hearing and renders its opinion.
The Courts Adapt to the Online World
A number of state and federal courts now allow parties to file litigation-related documents with the courts via the Internet or other electronic means. Nearly all of the federal appellate courts and bankruptcy courts and a majority of the federal district courts have implemented electronic filing systems. Almost every court now has a Web page offering information about the court and its procedures, and increasingly courts are publishing their opinions online. In the future, we may see “cyber courts,” in which all trial proceedings are conducted online.
Alternative Dispute Resolution
Negotiation
The parties come together, with or without attorneys to represent them, and try to reach a settlement without the involvement of a third party.
Alternative Dispute Resolution
Mediation
The parties themselves reach an agreement with the help of a neutral third party, called a mediator, who proposes solutions. At the parties’ request, a mediator may make a legally binding decision.


Mediation is the intervention into a dispute or negotiation of an acceptable, impartial and neutral third party who has no decision-making authority. The objective of this intervention is to assist the parties in voluntarily reaching an acceptable resolution of issues in dispute. Mediation is useful in highly-polarized disputes where the parties have either been unable to initiate a productive dialogue, or where the parties have been talking and have reached a seemingly insurmountable impasse.
Alternative Dispute Resolution
Arbitration
A more formal method of ADR in which the parties submit their dispute to a neutral third party, the arbitrator, who renders a decision. The decision may or may not be legally binding, depending on the circumstances.
Online
Dispute Resolution
A number of organizations and firms are now offering dispute-resolution services through online forums. To date, these forums have been a practical alternative for the resolution of domain name disputes and e-commerce disputes in which the amount in controversy is relatively small.
Assault
an unexcused and intentional act that causes another person to be apprehensive of immediate harm
battery
an assault that results in physical contact.
False imprisonment
The intentional confinement or restraint of another person's movement without
justification.
Intentional Infliction of Emotional Distress
An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.
Defamation (Libel or Slander)
A false statement of fact, not made under privilege, that is communicated to a third person and that causes damage to a person's reputation. For public figures, the plaintiff must also prove that the statement was made with actual malice.
invasion of privacy
The use of a person's name or likeness for commercial purposes without
permission, wrongful intrusion into a person's private activities, publication of information that places a
person in a false light, or disclosure of private facts that an ordinary person would find objectionable.
Appropriation
The use of another person's name, likeness, or other identifying characteristic, without
permission and for the benefit of the user.
Fraudulent misrepresentation
A false representation made by one party, through misstatement of facts or
through conduct, with the intention of deceiving another and on which the other reasonably relies to his or
her detriment
frivolous litigation
If a party initiates a lawsuit out of malice and without probable cause (a legitimate legal reason), and ends up losing the suit, that party can be sued for the tort of malicious
prosecution.
Wrongful interference
the knowing, intentional interference by a third party with an enforceable
contractual relationship or an established business relationship between other parties for the purpose of
advancing the economic interests of the third party.
Trespass to Land
The invasion of another's real property without consent or privilege. Once a person is expressly or impliedly established as a trespasser, the property owner has specific rights, which may include the right to detain or remove the trespasser.
Trespass to Personal Property
Unlawfully damaging or interfering with the owner's right to use, possess, or
enjoy her or his personal property.
Conversion
Wrongfully taking personal property from its rightful owner or possessor and placing it in the
service of another
Disparagement of property
Any economically injurious falsehood that is made about another's product or
property; an inclusive term for the torts of slander of quality and slander of title.
Negligence
The careless performance of a legally required duty or the failure to perform a legally required act. Elements that must be proved are that a legal duty of care exists, that the defendant breached that duty, and that the breach caused damage or injury to another.
Defenses to negligence
The basic affirmative defenses in negligence cases are assumption of risk, superseding cause, and contributory or comparative negligence.

superseding cause n. the same as an "intervening cause," or "supervening cause," which is an event which occurs after the initial act leading to an accident, and substantially causes the accident. The superseding cause relieves from responsibility (liability) the party whose act started the series of events which led to the accident, since the original negligence is no longer the proximate cause. (See: intervening cause, proximate cause)
Special negligence doctrines and statutes—Res ipsa loquitur
A doctrine under which a plaintiff need not prove negligence on the part of the
defendant because “the facts speak for themselves.”
Special negligence doctrines and statutes—Negligence per se
A type of negligence that may occur if a person violates a statute or an ordinance and
the violation causes another to suffer the kind of injury that the statute or ordinance was intended to prevent.
Special negligence doctrines and statutes—Special negligence statutes
State statutes that prescribe duties and responsibilities in certain circumstances, the violation of which will impose civil liability. Dram shop acts and Good Samaritan statutes are examples of special negligence statutes.

Dram shop liability refers to the body of law governing the liability of taverns, liquor stores and other commercial establishments that serve alcoholic beverages. Generally, dram shop laws establish the liability of establishments arising out of the sale of alcohol to visibly intoxicated persons or minors who subsequently cause death or injury to third-parties (those not having a relationship to the bar) as a result of alcohol-related car crashes and other accidents.
Strict Liability
Under the doctrine of strict liability, a person may be held liable, regardless of the degree of care exercised, for damages or injuries caused by her or his product or activity. Strict liability includes liability for harms caused by abnormally dangerous activities, by dangerous animals, and by defective products (product liability).
Cyber Torts— Online Defamation
General tort principles are being extended to cover cyber torts, or torts that occur in cyberspace, such as online defamation. Federal and state statutes may also apply to certain forms of cyber torts. For example, under the federal Communications Decency Act of 1996, Internet service providers are not liable for defamatory messages posted by their subscribers.
Newspaper verses online defamation
Immunity of ISP (internet service provider)
If ISP had no role in posts that are defamatory, it is the poster who is liable, not the ISP
Unlike newspapers
Roomate.com LLC
Whether or not the fair housing council can bring a case again website
Did they provide content and not just ISP
They had a questionnaire, so they are liable
District court dismissed this on the court of summary judgement
Court of appeals decided they provided content
Sent to trial
02/02/2012 decision
Fair housing act does not apply, not land lords
Website won case
Problem with spam
Problem with spam
Controlling where spam emails are coming from
Overseas, so US gov’t does not have jurisdiction over spam
Arrangements with foreign gov’ts to stop spam
Respondeat Superior
The common law doctrine of Respondeat Superior makes an employer liable for the actions of an employee when the actions take place within the scope of employment.
Employer liable for employees’ torts
Employer is liable if the employee’s action that caused damages was within the scope of employment
Respondeat Superior: Factors for determining whether an act is within the scope of employment include:
(1) whether the employer authorized the act;
(2) the act’s time, place, and purpose;
(3) whether the act is one commonly performed by employees on behalf of their employers;
(4) the extent to which the act advanced the employer’s interest;
(5) the extent to which the employee’s private interests were involved;
(6) whether the employer furnished the means or instrumentality by which injury was inflicted;
(7) whether the employer had reason to know that the employee would commit the act in question and whether the employee had done it before; and
(8) whether the act involved the commission of a serious crime.