question

every society of which we have any historical record has had some system of laws.

answer

t

question

it is not possible to look up the law in a single book.

answer

t

question

the Federal Constitution does three basic things: 1) Establishes the national government of the United States, with its three branches. 2) Ensures that the states retain all power not given to the national government, and 3) Guarantees many basic rights to the American people.

answer

t

question

in the areas of family law, criminal law, and property law, the states do most of the legislating and regulating. The amount of federal government regulation in those areas is relatively small.

answer

t

question

most administrative agencies are created by Congress or a state legislature.

answer

t

question

most criminal laws are statutes.

answer

t

question

Know how legal positivism answers the question "What is law?"

answer

Law is whatever the sovereign says it is (the entity permitted to use authoritative force says it is)

question

Know who the jury, the trial court judge, and the Appellate Court of New Jersey each declared as the winner in Kuehn v. Pub Zone.

answer

Jury found Kuehn winner, trial judge declared pub zone, appellate found for kuehn

question

mediation is the fastest growing method of dispute resolution in the United States.

answer

T

question

) Know the lesson of the Hill v. Gateway case described on page 47, which is that generally, mandatory arbitration provisions in contracts are valid, even if they require a customer to travel to a different state at their own expense to arbitrate a dispute with the manufacturer.

answer

US law permits that producers make you agree to dispute in an arbitrary in their own state

question

probate court is devoted to settling the estates of deceased persons

answer

T

question

there are no juries, ever, in an appeals hearing.

answer

T

question

appeals courts generally accept a factual finding unless there was no evidence at all to support it. If they find no evidence then they may remand the case to a jury trial. They are the backstops to crazy jury trials

answer

T

question

Janet could have filed Smiles v. Coastal Insurance Company in United States District Court based on diversity jurisdiction (and why,) but chose instead to file in Oregon state court. She could have filed because the plaintiff and defendant were citizens from 2 diff states and the amount was more than 75k

answer

T

question

the U.S. Courts of Appeals are divided into 13 circuits, 11 of which have numbers in their names and two of which do not.

answer

...

question

steps in civil procedure in their proper sequence:

answer

complaint, answer, reply (if there is one), discovery, trial, and finally, judgment.

question

essential fact is

answer

a fact that the plaintiff must prove to win his or her lawsuit.

question

it is unethical and illegal for a lawyer to tell a witness what to say.

answer

...

question

each side will have an unlimited number of challenges for cause but only a limited number of peremptory challenges during voir dire.

answer

2, 3 or 4 peremptory challenges (you don't have to give a reason) (challenge for cause=one juror is found to be biased beccause of a reason)

question

burden of proof is generally on the plaintiff to prove the case, and that each type of case has a different number of required elements, and that the plaintiff must prove each of these elements by a preponderance of the evidence in order to win their case.

answer

...

question

a judge should only grant a motion for a directed verdict if the evidence regarding the remaining factual issues so clearly favors the moving party that reasonable minds could not disagree regarding the facts, and the law requires that, under those facts, the moving party must win.

answer

...

question

Union Pacific Railway Co. v. Cappier

answer

trespasser crossing rail road tracks (railway employees did nothing). One arm and leg cut off and died en route to hospital. Railway company was not liable because it was a bystander

question

Carey v. Davis

answer

farm laborer, heat exhaustion, owner put him in the open sun in the wagon and got more sun stroke, permanent injuries, holding was that if the master is present (employee) and further injury are foreseeable and no action is taken and if injury then the master is liable

question

Osterlind v. Hill

answer

drunk guy rents a canoe from hill, drunk guy was drowning, Hill did nothing and guy drowned, holding was for hill because he was a bystanders that did not cause the harm

question

Tarasoff v. Regents of the University of California

answer

psychologist patient murdereded tarasoff, regents were sued and were found liable because courts ruled they had a duty to warn the victim

question

Soldano v. ODaniels

answer

2 bars, happy jacks where someone was threatened with a gun, odaniels second bar said no you can't call police and refused to let phone borrowed, the second bar was held liable for the murder

question

Parra v. Tarasco

answer

parra choked in a restaurant and heimleic maneuver was not used because they were not aware he was chocking , but bystander rule was used and not held liable

question

the one-word amendment offered by Mr. Smith of Virginia to the Title VII of the Civil Rights Act, and that some opponents of civil rights supported the amendment because they believed that it would make the legislation less popular and cause Congress to defeat the entire civil rights bill.

answer

sex

question

the three steps a court is supposed to proceed through in performing statutory interpretation, and that they are not supposed to proceed to the next step unless there is still something about the law that is unclear:

answer

a) The plain meaning approach (and the associated "plain meaning rule") regular dictionary is ok b) Legislative history and intent, and anything unclear or ambiguous c) Public policy if still unclear then yes

question

Know the three kinds of power granted to administrative agencies:

answer

a) Rulemaking=new legislative rules b) Investigation=inspectors c) Adjudication=if they were improperly fined

question

Know the doctrine of exhaustion of remedies.

answer

Administrative Judge must be exhausted, (2 layers of reviews must be exhausted to move on to trial court,

question

Know what the Freedom of Information Act (FOIA) is designed to do, and what two types of data are available under it. Know that the FOIA only applies to federal agencies.

answer

Designed to let ordinary citizens look up federal information: how it operates and yourself. It's only federal agencies

question

Article I of the Constitution created the U.S. Congress (the legislative branch of our federal government), Article II created the office of the president (the executive branch), and Article III created the Supreme Court (the judicial branch.)

answer

T

question

Know that the Commerce Clause gives the federal government:

answer

a) Exclusive power to regulate international commerce. b) Concurrent power to regulate domestic commerce, and (in-state) c) Exclusive power (close enough for our purposes) to regulate interstate commerce.

question

Kennedy v. Louisiana, the U.S. Supreme Court struck down a death penalty conviction for an aggravated rape conviction (where an 8 year old girl was the victim) as a violation of the Eighth Amendment's ban against cruel and unusual punishment.

answer

If he had killed her then death penalty would've been approved

question

Constitution established a federal government of checks and balances

answer

Anti federalist made the governemetn very weak. State gov. became stronger

question

political speech cannot be abridged or outlawed by government unless it is intended and likely to cause imminent lawless action.

answer

You cant say lets lynch senator smith. You can say he sucks.

question

three elements of the Miller test (See page 115) and the fact that a trial court may only judge a work obscene if they can answer all three questions in the Miller test with a "yes".

answer

no serious artistic value, activity appeals to lustful instincts, clearly deemed morally inappropriate

question

the government can regulate commercial speech provided that the rules are reasonable and directed to a legitimate government goal.

answer

...

question

basic facts behind the Salib v. City of Mesa case, and the Arizona Court of Appeals' decision and reasoning.

answer

Guy in donut shop who covered his windows 30% with ads and said it was a form of speech but court of appeals said it was commercial speech and was ultimately fined. They want to keep the city beautiful

question

regardless of how formal the hearing must be, one requirement is constant: the factfinder must be neutral.

answer

...

question

ever since the Supreme Court decided Dolan v. City of Tigard, before a government may require an owner to dedicate land to a public use, it must show that this land is needed to achieve the public purpose the government has in mind.

answer

...

question

statutes that regulate economic or social conditions, even if they classify citizens in some fashion (such as whether you are an hourly employee or a salaried employee) and even if they give citizens differential rights and/or duties based on that classification, will be presumed valid, and will be struck down as a violation of the Fourteenth Amendment only if they do not rationally relate to a legitimate government goal.

answer

They can say you have to get paid time and half for overtime but not for salary

question

examples of regulations directed at economic or social conditions include laws requiring people less than 18 years of age to attend school (or be home schooled,) laws prohibiting people under 21 from buying alcoholic beverages, laws requiring that you to be at least 15 years old to drive a car, and Internal Revenue Service regulations that state that persons with higher incomes must pay a higher percentage of their incomes in federal taxes. These are forms of age and income discrimination by the government that have been deemed to be rationally related to a legitimate government goal.

answer

...

question

any law that provides citizens with different rights and/or duties based on their gender will receive an intermediate level of scrutiny from the courts, and will be struck down as a violation of the Fourteenth Amendment unless they substantially relate to an important government objective.

answer

...

question

that any law that distinguishes between citizens based on their race or ethnicity and provides different rights and/or responsibilities to the groups thereby created will receive strict scrutiny from the courts, and will be struck down as a violation of the Fourteenth Amendment unless they are necessary to promote a compelling state (i.e. government) objective.

answer

Compelling example: Free screening of syckle cell anemia for black people, its ok because white people rarely have the disease

question

opinion is generally a valid defense in a defamation lawsuit

answer

...

question

basic facts of the Yeagle v. Collegiate Times case, and the Virginia Supreme Court's decision and reasoning.

answer

President talks to applicant to fellowships at a college, Article called her butt licker, she sued for defamation because it was a joke and reasonable readers would understand that it was a joke

question

the four required elements of the tort of defamation, and the additional (fifth) element which only public officials and public figures must prove

answer

Defamatory statement, False statement of fact, communicated, causing injury (liable vs slander)

question

that a person with a qualified privilege against a defamation lawsuit will retain that privilege if and only if they

answer

a) act in good faith, and b) speak (about the matter) only to persons who have a need to know. i.e tenant telling her landlord that her neighbor was selling automatic weapons

question

in order for a store's detention to have been done reasonably it generally must be the case that the detention was both:

answer

a) Done in a reasonable way, and b) Done for no longer than a reasonable amount of time.

question

the basic facts of the Ford Motor Credit Co. v. Sheehan case, and the Florida Appeals Court's 1979 decision.

answer

Credit company used false identity (hospital employee) to find Sheehan because of collection. Credit company said Sheehans children were falsely hospitalized inorder to obtain sheehans current address. Company was held liable because of intentional infliction of emotional stress

question

Know the basic facts of the Jane Doe and Nancy Roe v. Lynn Mills case, and the 1995 decision and reasoning of the Michigan Court of Appeals.

answer

2 women had their info recovered from a dumpster outside an abortion clinic and the protesters used it the next day with posters that said "don't kill your baby". Trial court held the defendants not liable but appeals court said they had the right to a jury because the posters would cause a reasonable person to say "Outrageous"!

question

one of the guidelines issued by the United States Supreme Court regarding punitive damages is that a trial court generally should not permit a punitive award more than nine times higher than the compensatory damages.

answer

...

question

, in the Exxon Valdez case, the jury decided that Exxon had been reckless by allowing Captain Hazelwood to pilot the ship when the company knew he was an alcoholic.

answer

...

question

the basic facts of the Texaco v. Pennzoil case, and the decision reached by the Texas Court of Appeals in 1987.

answer

Pennzoil and Getty Oil agreed on a bid but Texaco appeared and offered a higher bid before the lawyers could sign all the Pennzoil and Getty oil paper work. Pennzoil sued under "interference with a contract" and settled with Texaco for 3 billion

question

the basic facts of the Hernandez v. Arizona Board of Regents case, and the decision reached by the Arizona Supreme Court in 1994.

answer

Kid gets drunk at a college party, drives drunk and crashes into Ruben Hernandez, hernandez became quadrapalegic. Hernandez sued defendants, lost, appealed to supreme court and supreme court ruled for hernandez because the defendants did have a duty of due care to hernandez

question

the basic facts of the Wiener v. Southcoast Childcare Centers Inc. case, and the decision and reasoning of the Supreme Court of California.

answer

Man in a car intentionally ran into a child care center and killed 2 kids, sued but the supreme court of cali ruled for the defendants because third party criminal acts are treated differently with regards to negligence, it was unforeseeable

question

in negligent hiring cases, companies have generally been found liable for the criminal acts of their employees whenever they failed to check both the driving record and the criminal record of the employee, even if the employee has not demonstrated any threatening behavior since being hired.

answer

...

question

the rule of contributory negligence: if the plaintiff is even slightly negligent himself (in a contributory negligence state,) he recovers nothing in a negligence lawsuit.

answer

...

question

whereas 150 years ago it was very popular, very few states follow the rule of contributory negligence today; most use the rule of comparative negligence.

answer

...

question

white-collar crime costs society much more each year than street crime.

answer

...

question

if a person convicted of a crime is sentenced to a fine, the fine is always paid to the government, and never to the victim of the crime.

answer

...

question

the four types of mens rea requirements that a prosecutor may be required to prove, depending on the crime:

answer

general intent, specific intent, reckless or negligent conduct, and strict liability.

question

what the prosecution must prove if the government induces the defendant to break the law to prevent the defendant from being acquitted based on a defense of entrapment:

answer

namely, that the defendant was predisposed to commit the crime.

question

basic facts of the Commonwealth v. Angelo Todesca Corp. case, and the decision of the Supreme Court of Massachussetts.

answer

Company instructed truck driver to drive truck without an operating back up alarm. The truck driver backed into a police officer because he had no back up alarm and the supreme court found the company liable of motor vehicle homicide.

question

basic facts of the People v. ONeill case, and the decision of the Illinois state trial court in 1990.

answer

Workers at an xray recovering plant became deathly ill and died of acute cyanide poisoning because of lack of safety equipment. Trial judge sentences the president O'neil of murder and received 25 years in prison

question

what RICO prohibits.

answer

Using 2 or more racketeering acts to accomplish any of these: investing or acquiring a business with criminal money, maintaining a business through criminal activity, operating business through criminal activity

question

a magistrate will issue a search warrant only if there is:

answer

probable cause.

question

the six exceptions to the general rule that the police must obtain a search warrant before conducting a search

answer

Plain view, stop and frisk, emergencies, automobiles, lawful arrest, consent

question

the three important protections for criminal defendants found in the Fifth Amendment.

answer

Due process, double jeopardy, self incrimination (only to people not corporations)

question

the Fifth Amendment's protection against self-incrimination applies only to:

answer

living persons. It does not apply to corporations, who in certain other respects are treated by the law as legal "persons."

question

the Sixth Amendment guarantees the right to:

answer

have a lawyer present at all important stages of the criminal process.

question

California's "three strikes" law was challenged as unconstitutional (in violation of the defendant's Eighth Amendment protections against cruel and unusual punishment) in:

answer

Ewing v. California, but that the U.S. Supreme Court upheld the conviction. Also, know the basic facts of Ewing v. California. Parolee stole golf clubs $399 (normally a misdemeanor but treated as a felony because of past convictions). Ewing was convicted to 25 years to life. Supreme court upheld the appeal because it did not violate his 8th amendment rights

question

precedent

answer

an earlier case whose result will be used to control the outcome of the current one

question

common law

answer

judge made law, made by appellate courts over the years

question

statute

answer

a law passed by a legislative body such as congress

question

stare decisis

answer

let the decision stand (the precedent is ususally binding

question

substantive law

answer

rules that establish the rights of parties. the opposite of procedural laws

question

reverse

answer

an appellate court overrules a lower court and grants judgement for the opposite party

question

remand

answer

an appellate court ruling to have the case retried

question

natural law

answer

theory that an unjust law is not law at all and only legitimite if moral

question

legal realism

answer

what really influences the law is who makes it and enforces it not what is actually in writing

question

legal positivism

answer

law is what the sovereign says it is regardless of moral content

question

juriprudence

answer

philosophy of law. what is it?

question

equity

answer

broad powers of a court to give a remedy but no common law remedy exists. ex. an injuction

question

executive order

answer

order by president or governor, having the full force of law

question

affirmed

answer

the appellate court upholds the decisio of the lower court

question

federal constituion

answer

US constitution

question

Us congress consists of:

answer

House of Rep. and Senate

question

common law is:

answer

originated in England as lawyers such as Henry de Bracton began to record decisions and urge judges to follow earlier cases.

question

treaties:

answer

President makes all treaties with foreign nations, but that after the president signs the treaty, the treaty must be ratified by a 2/3 vote in the U.S. Senate to go into effect. House of rep. does not get a vote

question

staturory laws:

answer

crimminal law

question

how a natural law adherent would answer the question "How can we tell if a law should be obeyed?"

answer

If it "just law". Unjust laws should be disobeid

question

litigation

answer

process of filing a claim in court and going to trial

question

litigator

answer

a lawyer who handles court cases

question

alternative dispute resolution

answer

any formal or informal process used to settle disputes without trial

question

negotiation

answer

begins as soon as dispute arises and can take day to years

question

mediator

answer

does not render a decision in a dispute but helps get the parties to talk and negotiate

question

arbitration

answer

3rd party has power to settle a dispute with their own opinion

question

discovery

answer

ability to see all documents and evidence from the opponent

question

mandatory arbitration form

answer

when companies make you arbirtrate with them in their own state instead of going to litigation (when you buy something with fine print)

question

trial courts

answer

determine the facts of a dispute and apply the law of previous appellate rulings

question

jurisdiction

answer

courts power to hear a case

question

trial courts of limited jurisdiction

answer

courts that can hear only certain cases (juvenile court)

question

trial courts of general jurisdiction

answer

can hear any dispute (example is the the general civil dividion)

question

appellate courts

answer

accept the fact of trial courts and review the trial record to see if there were any errors of law

question

error of law

answer

finding by an appellate court that a law was misapplied or misinterpreted

question

federal question

answer

claim that involves the US constitution of a federal statute

question

diversity jurisdiction

answer

the plaintiff is and defendant are from different states and the amount is over 75k

question

US district court

answer

primary trial court of the federal system. 94 of them and states with little population only have one district

question

US supreme court

answer

highest court in the country. 8,000;100 ratio of cases heard

question

writ of certiorari

answer

a petition asking the supreme court to hear a case

question

pleadings

answer

document that begins a lawsuit, consist of the complaint, an answer and sometimes a reply

question

complaint

answer

a short plain statement of the facts alleged and legal claims made

question

answer

brief reply to answer allegations in the complaint. usually 20 days

question

default judgement

answer

decision that the plaitiff wins because the defendant failed to answer in time

question

counter claim

answer

a second lawsuit brought by the defedant

question

reply

answer

answer to a counter claim

question

motion

answer

a formal request to the court to take some step or issue an order

question

motion to dismiss

answer

request that the court terminate a case without permitting it to go any further

question

interrogatories

answer

writeen questions that the opposing party must answer in writing under oath

question

deponent

answer

a person being questioned

question

depositions

answer

lawyers ask questions of other party or witnesses

question

motion for a protective order

answer

request that the court limit discovery

question

motion to compel answers to interrogatories

answer

request that the court order depondent to answer more complete answers

question

in camera inspection

answer

the judge views the request documents alone with no lawyers present and decides whether the other side is entitled to see them

question

summary judgement

answer

ruling that no trial is necessary because some essential facts are not in dispute

question

voir dire

answer

process of selecting a jury

question

challenge for cause

answer

claim that a juror has demonstrated probale bias

question

peremptory challenges

answer

the right to excuse a juror virtually any reason

question

preponderance of the evidence

answer

plaintiff's burden of proof in a civil lawsuit

question

beyond a reasonable doubt

answer

gov. burden of proof in a criminal prosecution

question

directied verdict

answer

a ruling that the plaintiff has entirely failed to meet his burden of proof

question

judgement non obstante veredicto JNOV

answer

judgement notwithstanding of the jurs verdict. (judge overruling the jury based on the evidence)

question

modify

answer

affirms the outcome but with changes

question

harmless error

answer

mistake by the trial judge that was too minor to affect the outcome

question

studies show that over 75% of mediated cases reach a voluntary settlement.

answer

...

question

United States has over 50 independent systems of courts.

answer

...

question

three or more judges hear each appeals case

answer

...

question

generally, appeals courts accept the facts given to them by trial courts and review the trial record to see if the court made errors of law.

answer

...

question

in most states, including California, seven justices sit on the state Supreme Court, and all seven justices hear each case. State superme courts rarely hear cases

answer

...

question

the president of the United States nominates all federal court judges, even U.S. District Court judges, and the U.S. Senate confirms all those nominations.

answer

...

question

U.S. Supreme Court receives about 8,000 petitions for a writ of certiorari each year, but accepts fewer than 100 of them.

answer

...

question

a judge should only grant a motion for summary judgment if no matter what the jury finds on the remaining factual issues, the law says that the moving party must win the case. The judge should use the following rules: a) If the defendant filed the motion, grant the motion only if there is at least one essential fact that is not in dispute. If they fail to prove facts (death) b) If the plaintiff filed the motion, grant the motion only if there are no essential facts in dispute.

answer

...

question

well over 90% of lawsuits are settled (or dropped) before trial begins! Settle anytime you want

answer

...

question

when the parties to a civil lawsuit have a right to a jury trial, and when they do not. When money damages are asked for. Not for an injunction

answer

...

question

the burden of proof in a criminal trial is beyond a reasonable doubt, but that the burden of proof in a civil trial is by a preponderance of the evidence.

answer

...

question

what two types of questions ordinary witnesses may not answer, and what one type of question an expert witness may answer that ordinary witnesses may not.

answer

opinions (speculation) or Hearsay

question

bill

answer

a proposed statute submitted to congress or a state legislative

question

veto

answer

power of the president to reject legislation passed by congress

question

statutory interpretaion

answer

courts duty to explain exactly what the language means in a statutte and how it applies to a given case

question

plain meaning rule

answer

words that have everyday significance. "religion"

question

congressional override

answer

after veto if both houses repass the bill by 2/3 margin it becomes law

question

administrative laws

answer

IRS, federal Aviation agency, environment pretection agency are all examples and they rule over us like a fourth branch of government

question

enabling legislation

answer

when congress describes the problem needing regulating, establishes an agency for it and defines the agencys powers

question

legislative rules

answer

most important agency rule because they are like statutes

question

interpretative laws

answer

an agencys interpretation of what the law requires but they do not change the law but still affect us

question

informal rulemaking

answer

when agencies publish a proposed rule in advance to permit the public a chance to comment on it

question

formal rulemaking

answer

congress makes an agency accountable by requiring that the agency hold a hearing before promulgating rules

question

subpoena

answer

an order to apprar at a particular place and time

question

subpoena duces tecum

answer

requires a person to prodeuce certain documents or things

question

de novo decision

answer

power of an appellate court or board to ignore a lower judges ruling and make its own decison

question

adjudicate

answer

to hold a formal hearing about an issue and then decide it

question

administrative law judge

answer

an employee of the agency but is supposed to be impartial in the ruling. there is no jury

question

most of the work done in Congress is done in committees and subcommittees, rather than on the floor of the House or Senate.

answer

...

question

Senator Tower was concerned about regarding section 703(2) of Title VII of the 1964 Civil Rights Act, which led to section 703(h) being added to the bill.

answer

Concerned that employers would not be able to use any job test to validate hiring

question

Griggs v. Duke Power Co

answer

potential black employees claiming discrimination in the job hiring

question

Wards Cove Packing Co. v. Atonio

answer

Alaskan factory workers felt they weren't discriminated against by not being given promotions, all management was hired from out of state

question

three limits on the power of administrative agencies to issue subpoenas to help them in their ongoing investigations:

answer

a) Must be relevant to a lawful agency investigation b) Must not be unreasonably burdensome c) Must not demand privileged information

question

if a losing party appeals a case from the appellate board of an administrative agency to a state or federal court, the court will:

answer

a) Defer to the agency's findings of fact as long as there is substantial evidence to support such finding, and b) Defer to the agency's interpretation of the law as long as that interpretation was reasonable.

question

the Privacy Act (1974) prohibits

answer

the feds Exchanging your info to any other federal agency without your written permission

question

framers of the constitution

answer

the constitution founding fathers

question

articles of confederation

answer

ruled the first 13 colonies but had not real central government power and could not tax people

question

federalists

answer

urged for a strong central government

question

anti federalists

answer

urged for stronger state governemt and a weak federal government

question

bill of rights

answer

the first 10 amendment to the constitution guranteeing many liberties to citizens

question

power of the purse

answer

the authority to raise and spend money

question

the commerce clause

answer

giver congress the power to regulate commerce with foreign nations and among states

question

international commerce-exclusive powers

answer

only the federal govenrment may regulate it, the federal government must speak with one voice

question

domestic commerce- concurrent power

answer

both congress and the states my regulate domestic commerce

question

positive aspect- congressional power

answer

congress is authorized to regulate interstate commmerce

question

negative or dormant aspect

answer

the power of the states to regulate interstate commerce is severly restricted

question

substantial effect rule

answer

congress may regulate any activity that has a substantial economic effect on interstate commerce

question

the supremacy clause

answer

makes the constituition and federal statutes and treaties, the supreme law of the land

question

preempts

answer

federal law voids state law

question

power of judicial review

answer

power of fedral courts to declare a statute or governemal action unconstitutional and void

question

judicial activism

answer

courts willingess to be involved in major issues

question

judicial restraint

answer

a courts attitude that it should leave lawmaking to legislators

question

political speech

answer

protected unless it is intended and likely to create imminent lawless action

question

time place manner

answer

the governemt may regulate time place and manner of certain speech

question

commercial speech

answer

communication such as advertisements that has the dominant theme of proposing a business transaction

question

takings clause

answer

ensures that when any government unit takes the private property for public use, it must compensate the owner

question

procedural due process

answer

ensures the before the governemnt takes liberty or property the affected person has a fair chance to oppose the action

question

neutral fact finder

answer

the fact finder must have no personal interest in the outcome (ward v. monroeville where a ticket is given but mayor is the judge)

question

eminenet domain

answer

power of the governemtn to take private property for public use

question

substatntive due process

answer

holds that certain rights are so fundamental that the government may not eliminate them

question

economic and social regulations

answer

state laws that regulate minimum wage are presumed valid

question

fundamental rights

answer

right to free speech, right to vote, right to travel (rights that are so basic that any law that infringes will be struck down )

question

equal protection clause

answer

generally requires the governement to treat everyone equally

question

minimal scrutiny

answer

classifications based on economic and social regulations

question

intermediate scrutiny

answer

classifications based on gender

question

strict scrutiny

answer

classification base on race, ethnicity or fundamental rights

question

what the federalists urged and what the antifederalists feared during the constitutional convention of 1787

answer

a strong central governement

question

our federal government is a government of enumerated powers because of the words in Article I, Section 8 of our federal constitution

answer

...

question

the primary source of federal power to regulate business is the

answer

Commerce Clause, and that this power was substantially broadened in about 1937, when the Supreme Court began using the Substantial Effect Rule and the Aggregation Argument to justify federal regulation of purely intrastate business activities

question

constitutional rights generally protect only

answer

Only governmental acts, private are not

question

the First Amendment protects not only speech, but also

answer

conduct that communicates a message, such as burning a flag as part of a political protest. (See Texas v. Johnson.)

question

basic facts behind the Texas v. Johnson case, and the Supreme Court's decision.

answer

Johnson burned American flag, he was convicted but overturned because it was an act of speech becauses of lawless action, the appeals court was right (us supreme court)

question

basic facts behind the Barnes v. Glen Theater case, and the Supreme Court's decision and reasoning.

answer

Guy goes to a bar and ladies took all cothes off and ladies were arrested and accused of indecent exposure, womens nude dancing was speech, us supreme court ruled that the state had rights to pass laws to preserved moral climate of the state, us supreme said it was "all other" type of speech, lowest level of protection behind political and commercial, barnes won, state won.

question

for regulations on commercial speech to be judged reasonable, court must believe that:

answer

a) the regulations will materially advance the goal the government has claimed, and b) the restriction on commercial speech is no more than necessary to advance the goal. (Lecture only)

question

Know that what sort of hearing the government must offer when proposed to take liberty or property depends upon how important the property or liberty interest is.

answer

If they want to fine you $110 for parking tickets then it doesn't have to have as much due process as murder

question

Ward v. Monroeville

answer

a traffic offense (moving violation) went all the way to the Supreme Court. Also know the Supreme Court's decision and reasoning on that case. Us spuremer decided that they reversed the finding that he cannot be fined the mayor was not neutral, mayor gets revenue if people get tickets, found not guilty

question

Kelo v. City of New London, Connecticut case

answer

City wanted to engage in economic redevelopment, developers wanted to build a shopping mall, supreme court said yes go for it by private developers

question

examples of regulations directed at economic or social conditions include

answer

minimum wage laws, workplace safety rules, rules against discrimination in the workplace, and the rights of unions and union members to organize.

question

any law that infringes upon a fundamental right

answer

will be struck down as unconstitutional unless it is necessary to promote a compelling government interest

question

exempting women from the (military) draft is an example of

answer

differential treatment of citizens based on gender that passes the substantially relates to an important government objective test and therefore is deemed constitutional under the Fourteenth Amendment

question

tort

answer

a violation of a duty imposed by the civil law

question

intentional tort

answer

harm caused by a deliberate action

question

negliegence

answer

injuroes caused by neglect and oversight rather than by deliberate conduct

question

strict liability

answer

a type or tor lawsuit which does not require a plaintiff to prove the element of the fault

question

libel

answer

written defamation

question

slander

answer

oral defamation

question

element

answer

a fact that a plaintiff must prove to win a lawsuit

question

defamation statmente

answer

words likely to harm another persons reputation

question

opinion

answer

generaally a valid defense in a defamation suit because it cannot be proven true or false

question

public official

answer

example :a police chief

question

public figure

answer

example: a movie star

question

actual malice

answer

the defendant knew that the statment was flase or acted with reckless disregard of the truth

question

absolute priviledge

answer

a witness testifying in a court or legislature may never be sued for defamation

question

qualified privilege

answer

exists between 2 people who have legitimate need to exchange information

question

false imprisonment

answer

the intentional restraint or another person without reasonable cause and without consent

question

intentional infliction of emotional distress

answer

results from extreme and outrageous conduct that cause serious emotional harm

question

battery

answer

an intentional touching of another person in a way that is unwantd or offensive

question

assault

answer

occuers when a defendant does some act that makes a plaintiff fear an imminent battery

question

fraud

answer

injuring another person by deliberate deception

question

compensatory damages

answer

money intended to restore a plaintiff to the position he was in before the injury

question

single recovery principle

answer

requires a court to settle the matter once and for all by awarding a lump sum fo the past and future expenses

question

punitive damdages

answer

intended to punish the defendant for condut that is extreme and outrageous

question

tortious interference with a contract

answer

the defendant improperly induced a 3rd party to breach a contract with the plaintiff

question

intrusion

answer

a tort if a reasonable person would find the invaasion of her private life offensive

question

due care

answer

if the defendant could have foreseen injury to a particular person, she has a duty to him. the test is about "foreseeability"

question

negliegence per se

answer

the minimum standard of care for a particular acitivity, the plaintiff does not need to show negliegence per se to prove breach of duty

question

factual cause

answer

the defendants breach physically led to the ultimate harm

question

foreseeability type of harm

answer

for the defendatnt to be liable the type of harm must have been reasonably foreseeable

question

res ipsa loquitur

answer

"the thing speaks for itself", the court infers that the defendant caused the harm

question

assumption of risk

answer

person who voluntarily enters a situation that has an obviousdanger cannot complain if she is injured

question

strict liability

answer

a higher burden of liability because on anyone who engages in such practice (corporation that handles toxic waste)

question

ultrahazardous activity

answer

a defendant engaging in ultra hazardous acitvity is virtually always liable fo rnay harm that results

question

basic facts and the outcome of Mashburn v. Collins,

answer

Donald Mashburn sued the author of a New Orleans States-Item newspaper article for defamation. Food critic publisher clowned a restaurants food in their newspaper and was accused of defamation but a reasonable reader would condlude that it was an opinion so the plaintiff lost

question

basic facts of the Zeran v. America Online case, and the court's decision and reasoning.

answer

t-shirts were sold at under his name about oklahome city bombing, sued AOL, and plaintiff lost because internet service providers were granted complete exoneration

question

qualified privilege

answer

against a defamation lawsuit exists when two people have a legitimate need to exchange information.

question

generally, a store may detain a customer or worker for alleged shoplifting provided that:

answer

a) there is a reasonable basis for the suspicion, and b) the detention is done reasonably.

question

the two required elements of the tort of intentional infliction of emotional distress are:

answer

a) Defendant engaged in behavior which was extreme and outrageous, and b) Defendant's behavior caused serious emotional harm to plaintiff.

question

basic facts of the Midas Muffler Shop v. Ellison case, and the Arizona Appeals Court's 1982 decision.

answer

midas muffler shop v Ellison- a muffler shop made 6 calls on 3 months to a customer who owed money, she claimed intentional infliction of emotional distress, the judge disagreed and sent her home

question

the one required element of the tort of assault:

answer

: the defendant performs an act which would cause a reasonable person in the position of the plaintiff to fear an imminent battery.

question

Williams v. Philip Morris Incorporated

answer

the Court of Appeals of Oregon reinstated the $79.5 million punitive damages award found by the jury in the case of Williams v. Philip Morris Incorporated, even though it greatly exceeded the "no more than nine-times compensatory" guideline issued by the Supreme Court, arguing that the award was reasonable and proportionate given the appalling conduct of Philip Morris Incorporated and the length of time over which they engaged in that conduct.

question

the four required elements of the tort of interference with a contract

answer

interference with a contract: 1. there was a contract between the plaintiff and a 3rd party 2. the defendant knew of the contract 3. the defendant improperly induced the 3rd party to breach the contract or made performance of the contract impossible 4. there was injury to the plaintiff

question

the five elements a plaintiff must prove to win a negligence case.

answer

five elements of a negligence case: 1.duty of due care: the def had a duty of care to the plaintiff 2. breach of contract: the defendant breached their duty 3. Factual cause: the defendants conduct cause the injury 4. Foreseeable Harm: it was foreseeable that conduct like the defendants might cause that type of harm 5. injury: the plaintiff has actually been hurt

question

dram shop laws

answer

generally make liquor stores, bars, and restaurants liable for serving drinks to intoxicated customers who later cause harm, but exclude social hosts from such liability.

question

Gaines v. Monsanto case

answer

a man with a violent criminal past was hired at a company, one night he followed a female employee home and murdered her. The court found the company liable for failing to conduct an adequate background check prior to his hiring. This is an example of negligent hiring. the decision of the Missouri Court of Appeals, which is that the employer is liable for the criminal acts of its employees if it knew or should have known of the employee's criminal history.

question

, in the context of negligence law, a defendant breaches his duty of due care by:

answer

failing to behave the way a reasonable person (with similar training) would under similar circumstances.

question

in a comparative negligence state

answer

, a jury will multiply the defendant's percentage responsibility times the dollar amount that would make the plaintiff whole in order to determine the award in a negligence lawsuit.

question

crimminla law

answer

prohibits conduct threatening to the people and social stability

question

restituion

answer

guilty defendant must reimburse the victim for the harm suffered

question

specific deterrance

answer

intended to teach this defendant that crime carries a heavy price tag

question

general deterrence

answer

goal of demonstrating to soceity that crimes must be shunned

question

retribution

answer

giving back to the criminal precisely what he deserves

question

beyond a reasonable doubt

answer

very high burden of proof in a criminal trial demanding much more evidence and certainly than required in a civil trial

question

actus reus

answer

the guilty act

question

mens rea

answer

the guilty state of mind

question

general intent

answer

defendant intended to do the prohibited physical action

question

specific intent

answer

requires that the prosecution prove criminal intent

question

criminal recklessness

answer

consiously disregarding a substantial risk of injury

question

criminal negliegence

answer

gross deviations from reasonable conduct

question

M'Naghten Rule

answer

defendant must show he suffered a serious, identifiable mental disease and that beacuse of it he didnt understand the nature of his act

question

entrapment

answer

what police do to push someone into commiting a crime

question

larceny

answer

trespassory taking of personal property with thte intent to steal it

question

embezzelment

answer

the fraudulent conversion of property already in the defendant possession

question

computer fraud and abuse act

answer

you cant use a computer to commit theft, or fraud

question

access device fraud act

answer

you cant use cards, codes, account numbers to obtain money or goods

question

identity theft and assumption deterrence act

answer

you cant use the identity of someone else to commit fraud or other crime

question

wire and electronic communication interception act

answer

you cant intercept most wire, oral or electronic communication

question

federal sentencing guidelines

answer

detailed rules that judges must follow when sentecing defendant convicted of crimes in federal court

question

compliance program

answer

a plan to prevent and detect criminal conduct at all level of the company

question

racketeer influenced and corrupt organizations act RICO

answer

a powerful federal statute originally aimed at organized crime now used in many criminal prosecutions and civil lawsuits

question

racketeering acts

answer

any of a long list of specified crimes, such as embezzelment, arson, mail fraud, or wire fraud

question

money laundering

answer

using the proceeds of criminal acts either to promote crime or conceal the source of the money

question

criminal procedure

answer

process if investigating, interrogating, and tryinga criminal defendant

question

informant

answer

the snitch

question

affidavit

answer

written statement signed under oath

question

probable cause

answer

it is likely that evidence of crime will be found in the place to be searched

question

search warrnat

answer

must specify with reasonable certainty the place to be searched and the items to be seized

question

bail hearing

answer

judge tells you how much the bail is that you must pay inorder to go free pending the trial

question

grand jury

answer

group of ordinary citizens that decide if there was probable cause that the defendant committed the crime and should be tried

question

indictment

answer

the govenrments formal charge that the defendant has comiited a crime and must stand trial

question

arraignment

answer

when a defendant is read their charges and they answer how they plea

question

motion to supress

answer

request that the court exclude certain evidence because it was obtained in violation of the constitution

question

plea bargain

answer

an agreement in which the defendant pleads guilty to a reduced charge and the prosecution recommends to the judge a relatively lenient sentence

question

exclusionary rule

answer

evidence found illegally may not be used at trial against the victim of the search

question

foceiture

answer

the governemnt may seize property that was obtained through illegal funds

question

the local prosecutor will decide whether or not to charge a criminal suspect with a crime and whether to enter into a plea bargain with him or take him to trial - not the police and not the victim.

answer

...

question

the four goals of or rationales for criminal punishment:

answer

restraint, deterrence, retribution, and rehabilitation.

question

three elements the prosecution must prove in order to find a corporation guilty of a crime:

answer

a) An agent of the corporation committed a crime, and b) The agent was acting within the scope of their employment at the time, and c) It is reasonable for the jury to conclude that the agent's actions were intended by the agent to benefit the corporation

question

the most common punishment for a corporation found guilty of a crime is

answer

a fine

question

Congress passed RICO primarily to prevent.

answer

to stop mobsters from investing their money in legitimate businesses

question

a search warrant must specify with reasonable certainty

answer

the place to be searched and the items to be seized.

question

the Fourth Amendment prohibits

answer

prohibits illegal search and seizure, there are 6 exceptions

question

three conditions under which a search conducted with a search warrant still violates the Fourth Amendment.

answer

1. there was no probable cause to issue the warrant 2. the warrant does not specify the place to be searched and items sought 3. the search extends beyond what is specified in the warrant

question

the two additional requirements imposed by the due process clause of the Fifth Amendment in the context of criminal law:

answer

a) If the prosecution has in its possession evidence favorable to the defendant's case, it must disclose that evidence. b) If a witness says a tall white male robbed the liquor store, it would violate due process for the police to place the male suspect in a lineup with four short women and two Hassidic (Orthodox) Jews.

question

the affect of the U.S. Supreme Court's decision in Miranda v. Arizona on custodial interrogations by the police.

answer

a confession in a custodial interrogation may not be used against the defendant, unless he has been read his Miranda rights

question

the Eighth Amendment prohibits

answer

cruel and unusual punishment of an individual by the government, and excessive fines.

question

the Eighth Amendment bars some, but by no means all

answer

forfeitures

Business Law study guide Midterm – Flashcards

Unlock all answers in this set

Haven't found what you were looking for?

Search for samples, answers to your questions and flashcards