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- Applying the utilitarian theory requires: Determination of individuals affected; Cost-Benefit analysis, and Choice among alternative actions.
- Applying the utilitarian theory, it is a determination of the individuals that are affected, a cost-benefit analysis, and a choice among alternative actions.
Outcome-based Ethics: Utilitarianism
- An action is ethical based on whether it produces the greatest good for the greatest number of people upon which it has an effect. "Tyranny of the Majority" If it affects the majority adversely, it is morally wrong.
- → What you want to consider ethical is what promotes the greatest good for the greatest number of people. Now, that sounds good, but there are some problems in its application. I call it the "tyranny of the majority." So, you can have the greatest number of people benefited by oppressing a minority group. Well, that doesn’t make sense. That is not what the utilitarianism has had intended, but it is morally and ethically wrong.
Corporate Social Responsibility
CSR is the idea that those who manage corporations should be accountable to society for their actions. Stakeholder Approach: corporations have a duty not only to shareholders but other groups (stakeholders) affected by corporate actions. →concept that was promoted by Andrew Carnegie
Making Ethical Business Decisions
George. S. May company has provided six guidelines: The law. Rules and procedures. Values. Conscience. Promises. Heroes (role models).
Practical Solutions to Corporate Ethics Questions
Corporate-Ethics.us has devised a procedure: Inquiry. Discussion. Decision. Justification. Evaluation.
Business Ethics on a Global Level
- American companies must be trained in cross-cultural business practices. Monitoring the Employment Practices of Foreign Suppliers. Corporate Watch groups can hold corporations accountable.
- On the global level, ethics becomes a little more confused because what is the standard in some countries may be almost criminal or even fraudulent in other countries. Consequently, you have some potential difficulties when one country legislature’s laws for businesses that are doing business in other countries whose laws are entirely different.
Foreign Corrupt Practices Act. o Prohibition against Bribery of Foreign Officials. But FCPA does not permit "grease" payments to minor officials. o Nor does FCPA
Ch. 2 The Judiciary’s Role in American Government
Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote: o "It is emphatically the province and duty of the judiciary to say what the law is…"
Basic Judicial Requirements
Jurisdiction: "Juris" (law) "diction" (to speak) is the power of a court to hear a dispute and to "speak the law" into a controversy and render a verdict that is legally binding on the parties to the dispute.
- Jurisdiction: The authority of the court to speak the law into a circumstance or controversy. Jurisdiction of the court comes in a variety of different ways.
Jurisdiction Over Persons or Property
- Persons: power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate.
- Personal jurisdiction is called in personam jurisdiction.
Jurisdiction Over Persons or Property
In Rem: power to decide issues relating to property, whether the property is real, personal, tangible, or intangible. o A court generally has in rem jurisdiction over any property situated within its geographical borders.
- Long Arm Statutes: courts use long-arm statutes for non-resident parties based on "minimum contacts" with state. Means defendant had some connection with forum state
- So, in order to get jurisdiction over someone to come to Washington state that is a non-resident, they must have minimum contacts with the state of Washington and minimum contacts is no a black and white rule. It is not easily defined.
Subject Matter Jurisdiction
General and Limited Jurisdiction o Limitation on the types of cases a court can hear, usually determined by federal or state statutes. Example: probate, bankruptcy, criminal. o Usually defined by statute. Can also be limited to amount in controversy (amount of monetary damages).
Original and Appellate Jurisdiction
Courts of original jurisdiction is where the case started (trial). Courts of appellate jurisdiction have the power to hear an appeal from another court.
Federal Court Jurisdiction
Federal Question" cases: o Rights or obligations of a party are created or defined by some federal law. "Diversity of Citizenship" cases: o Parties are not from the same state, and o The amount in controversy is greater than $75,000.
There are two ways to get jurisdiction in federal court. The first is really easy. It is federal question jurisdiction meaning that you are litigating an issue of federal law, a law created by Congress – interpreting a law created by the U.S. Congress, not a state law. So, if you have federal question, that is easy, you have jurisdiction. The other way you can get jurisdiction is diversity of citizenship and the way that works is you have to be suing someone from the other state and the amount that you are suing over has to be over 75,000 dollars. If you meet those two requirements,
Exclusive vs. Concurrent Jurisdiction
Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case. Concurrent: more than one court can hear the case.
Jurisdiction in Cyberspace
The courts have broken down internet sales into three categories. One is where there is substantial business conducted over the internet. Two is where there is some interactivity through a website and three, where there is only passive advertising. They have said "If there is only passive advertising then forget it, you can’t force someone to come to your state if they are out of state. If there is some interactivity, then that’s a definite maybe. And then if there is substantial business conducted over the internet, then in fact you can force them to come to this state to defend themselves."
Venue is concerned with the most appropriate location for the trial. Generally, proper venue is whether the injury occurred.
A party must have suffered a legal injury and have a sufficient "stake" in the controversy. CASE 2.2 Oregon v. Legal Services Corp (2009). Was there a "concrete" injury to the state?
If you don’t personally have a stake in the controversy, then you cannot be the one that brings the claim.
State and Federal Court Systems
State and federal court systems are divided up in a variety of ways. This slide indicates that you have a district court, which is a trial level court and there is administrative courts and there is specialized courts such as bankruptcy, international trade, tax court and so on. All those are trial level courts. Specialized courts have limited subject matter authority whereas the district court has unlimited subject matter authority although if you a case dealing with bankruptcy, they would make you transfer to bankruptcy court. If you wanted to appeal a case from the federal district court, it would go to the court of appeals.
Trial courts then are either municipal and district court and courts of limited jurisdiction, superior court for the county or district court or specialized courts in the federal court system. All these are courts of record, meaning that a record is made of all court transactions. In addition to the ones that I mentioned, there is also a small claims court in county district court that will handle matter up to 5,000 dollars, limited as far as subject matter. As I said before, the courts of appeal will hear appeals from other lower courts, but they do not handle any testimony.
Review trial courts proceeding to determine whether the trial was according to the procedural and substantive rules of law. Generally, appellate courts will consider questions of law, but not questions of fact.
The two most fundamental ways to have your case heard in a supreme court are: o Appeals of Rights. o By Writ of Certiorari. →
Alternative Dispute Resolution
Most common: negotiation, mediation, arbitration.
Negotiation is something that goes on in almost every case. Before I would file a case in court, I would try and negotiate with the other side and try and solve the dispute. After I file the case, I would still work on negotiation with the other side, trying to resolve the case before going to trial. So, negotiation is an important aspect of trying to settle a case and in Washington, over 90 percent of the cases that are filed in court are settled at the negotiation stage and they don’t go to trial.
Involves neutral 3rd party ‘mediator’. Mediator talks face-to-face with parties (in different rooms) to determine "common ground." o Advantages: few rules, customize process, parties control results (win-win). o Disadvantages: mediator fees, no sanctions or deadlines.
Next is arbitration. Arbitration is where you submit the case to a third party and they make a binding decision regarding the case. Now, you can have a variety of different rules in order to present the case, you can use a national arbitration society member or you can do your own arbitration.
Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence. Arbitrators do not have to issue written opinions. Generally, no discovery available.
Other Types of ADR
Early Neutral Case Evaluation Mini-Trial Summary Jury Trials.
Chapter 3: Court Procedures
Court procedures are a critical aspect of bringing one’s claim to court in U.S. or American judicial system.
American and English court systems follow the adversarial system of justice. Each client is represented by an attorney although a client is allowed to represent herself (called "pro-se").
In American judicial system, it’s an adversarial system, a system where each party is opposed to the other and the judge is a neutral third party.
The rules of procedure first of all are governed by the U.S. Constitution, which requires that each party has due process, adequate notice, and a fair and impartial hearing.
Stages of Litigation
- Stages in a Typical Lawsuit Accident, Breach of Contract or Other Event
- ↓ Party Consults with Attorney (Initial Client Interview, Signing of Retainer Agreement)
- ↓ Informal Investigation
- ↓ Plaintiff’s Attorney Filed Complaint
- ↓ Defendant Notified of Lawsuit (If Service is Not Waived, Complaint and Summons Served on Defendant)
- ↓ Defendant’s Attorney Files Answer to Complaint or Motion to Dismiss
- ↓ Motion for Judgment on the Pleadings (Request to End Case Based on Information Contained in the Pleadings)
- ↓ Discovery (Formal Investigation: Deposition, Interrogatories, Other Discovery Requests)
- ↓ Motion for Summary Judgment (Request to End Case on Available Information)
- ↓ Further Discovery
- ↓ Pretrial Conference
- ↓ Trial
- ↓ Posttrial Motions
- ↓ Appeal
- ↓ Steps to Enforce and Collect Judgment
Pleadings. Discovery. Conference Jury Selection
Plaintiff’s Complaint. o Court acquired jurisdiction over subject matter and Plaintiff. o Facts: What happened. o Prayer: Court relief.
Pleadings is the complaint and the answer that are filed with the court that initiates the lawsuit and establishes what the claim is. The plaintiff will file a complaint. That complaint will allege what jurisdiction the court has. It is allege what the damages are, who is at fault and why that this claim is even in court in the first place. The complaint along with the summons is served on the defendant.
Pleadings: Service of Process/Method of Service
Plaintiff serves Defendant with Complaint and Summons. → [sample] Default Judgment for Plaintiff if Defendant does not Answer.
Usually by Sheriff or private process server. Copy of Compliant and Summons personally delivered. If Defendant cannot be reached, "Notice by Publication" is allowed in local newspaper of record.
Pleadings: Defendant’s Response
The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint. In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.
Defendant’s Answer: o Makes General Denial. o May move for Change of Venue. o May allege Affirmative Defenses. → o May assert Counterclaims against Plaintiff.
Now, a counterclaim is a claim by the defendant against the plaintiff saying, "Well, the plaintiff alleges I did this to him, but he did this to me, so I get to get a recovery against him" and so that’s what it is, it is a counterclaim, counter to his claim and that is an important part of what is presented in court.
Interrogatories: written questions and answers under oath. Requests for Admissions: admission is considered a "fact" for trial. Requests for Documents, Objects, and Entry Upon Land.
After discovery is completed meet with trial judge. Explore possibility of settlement, or identify issues that are in dispute for jury to consider.
- Right to Jury Trial is guaranteed by Seventh Amendment to U.S. Constitution. Jury Selection.
- Voir Dire. -process in which you get to ask jurors questions and make sure that they don’t have any built in biases against your client
- Jurors can be dismissed peremptorily (no reason or for cause (bias)).
Opening Statements. Rules of Evidence. o Judge decides what evidence is admissible for jury’s consideration. o Evidence must be relevant to the issues (tends to prove or disprove).
Examination of Witnesses: by direct or cross examination. o Expert Witnesses: Provide specialized knowledge and opinions that help jurors decide issues.
1. Statement by party opponent 2. Prior statement of witness 3. Presence sense impression 4. Excited utterance 5. Existing mental or emotional condition 6. Medical Diagnosis 7. Recorded Recollection 8. Public Records 9. Reputation of character
Closing Arguments, Jury Instructions and Verdict
After both sides present their cases, the attorneys make their closing statements. o Each attorney summarizes the facts and evidence and tells her client’s story in the most compelling way possible.
Jury Instructions: After closing arguments, the judge instructs the jury on the law of the case. o Criminal cases – burden of proof is "beyond a reasonable doubt" and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.
The jury’s decision is called the verdict. It is either a guilty or not guilty in a criminal case or it can be liability in a civil case. It could be a contract case, any number of other things and the jury makes that decision and then they would be dismissed by the court.
Jury Instructions: Criminal
A defendant is presumed innocent. This presumption continues throughout the entire trail unless you find during your deliberations that it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
Civil Cases – generally, burden of proof is by "preponderance" of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/hung jury.
After jury reaches a verdict, either party can make a posttrial motion. Motion for New Trial: after looking at all the evidence, judge will grant the motion IF the jury was in error. Motion for J.N.O.V.: granted only if the jury’s verdict was unreasonable and erroneous.
A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial. Appellants must have legitimate grounds for appeal (usually legal error).
Enforcing the Judgment
If a defendant doesn’t have any money, even though you have a nice judgment against him, a perfectly legal, valid judgment, it will probably not do you any good. It is very difficult to get money out of someone who doesn’t have any. That being said you could garnish someone’s wages if you have a judgment against them, but that garnishment is only a small percentage of the wages that someone receives that is above minimum wage.
Chapter 4: Constitutional Authority to Regulate Business
This is chapter four: constitutional law, the authority under the Constitution to regulate business.
The Constitutional Powers of Government
Three branches that are supposed to be coequal branches that have checks and balances one to another.
the Tenth Amendment
In the end, the Tenth Amendment was established to help clarify the position. The Tenth Amendment says that all powers are granted to the states and the people except what has been specifically delineated, reserved out for the federal government making it clear that the intent was that federal government was limited in what it could do, limited in its authority to only what was specifically enumerated and this was something that the states’ rights people tried hard to get enacted and did so as the Tenth Amendment.
Relations Among States
Privileges and Immunities Clause. o Art. IV §2 of the U.S. Constitutions. o Prevents state from imposing unreasonable burdens on citizens – particularly with regard to basic and essential activities.
Full Faith and Credit Clause (Art. IV §1). o Applies only to civil matters. o Ensures that any judicial decision with respect to such property rights will be honored and enforced in all states.
Separations of the National Government’s Powers
- National government provides checks and balances among three branches: executive, legislative and judicial. o Legislative (Congress): Creates laws.
- Executive (President/Agencies): Enforce laws.
- Judicial (Federal Courts): Interpret laws.
The Commerce Clause
the supreme court went through and listed – there is three broad categories of activity congress may regulate under its commerce power. Those three – first, Congress may regulate the use of channels of interstate commerce, whether you are talking about the roads or canals, rivers, etc. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, meaning the trucks, the cars and so on, so that they are safe and so on, and finally, Congress’ commerce authority includes the power to regulate those activities that have any substantial relation to interstate commerce and it’s that test that is applied to this case.
The Supremacy Clause and Federal Preemption
- Well, we know it because it says it is and that is how we know it. It is the supreme law of the land. If there is any law that conflicts with the U.S. Constitution, it must be struck down.
- States can be more restrictive just not less restrictive.
- Federal preemption means that there is an area of law that the federal government has stepped in and said, "We are going to regulate this". If federal government preempts that area of law, then no state laws can be enacted.
Taxing and Spending Powers
Article I, Section 8: Congress has the "Power to lay and collect Taxes, Duties, Imposts, and Excises" which shall be "uniform" among the states. Expansion of commerce clause gives taxing power as well.
Business and the Bill of Rights
The first ten amendments to the U.S. Constitution otherwise known as the Bill of Rights are significant to each and every one of us. They provide us with delineation of rights, when I say ‘us’ I mean the people of United States, with significant rights and protections.
The Bill of Rights
- First Amendment: Guarantee the freedoms of religion, speech, and the press and the rights to assemble peaceably and to petition the government.
- Second Amendment: States that the right of the people to keep and bear arms shall not be infringed.
- Third Amendment: Prohibits, in peacetime, the lodging of soldiers in any hour without the owner’s consent. Fourth Amendment: Prohibits unreasonable searches and seizures of persons or property.
- Fifth Amendment: Guarantee the rights to indictment by grand jury, to due process of law; and to fair payment when private property is taken for public use; prohibits compulsory self-incrimination and double jeopardy (being tried again for an alleged crime for which one has already stood trial).
- Sixth Amendment: Guarantees the accused in a criminal case the right to a speedy and public trial by an impartial jury and with counsel. The accused has the right to cross-examine witnesses against him or her and to solicit testimony from witnesses in his or her favor.
- Seventh Amendment: Guarantees the right to a trial by jury in a child case involving at least twenty dollars.
- Eight Amendment: Prohibits excessive bail and fines, as well as cruel and unusual punishment.
- Ninth Amendment: Establishes that the people have rights in addition to those specified in the Constitution. Tenth Amendment: Establishes that those powers neither delegated to the federal government nor denied to the states are reserved to the states and to the people.
Freedom of Speech
Freedom of speech is one of the more significant and important rights that each one of us has. It is protected by the highest level of protection regarding fundamental constitutional rights and we will go through – well, I will want you to know the two tests, there is actually more than two, but we are going to talk about just two tests of whether or not something is constitutional, we will get into that later.
- Certain types of speech are not protected by the First Amendment: o Slander. o Obscenity (see Miller v. California). o Fighting Words.
- Online Obscenity: o CDA, COPA, Children’s Internet Protection Act, Children’s Internet Protection Act (2000).
Strict Scrutiny Test
Laws that affect fundamental rights of similarly situated individuals differently are subject to the "strict scrutiny" test. Any "suspect class" (race, national origin) must serve a "compelling state interest" which includes remedying past discrimination.
Rational Basis Test
Applied to matters of economic or social welfare. Laws will be constitutional if there is a rational basis relating to legitimate government interest.
Freedom of Religion
First Amendment may not "establish" a religion or prohibit the "free exercise" of religion. The Establishment Clause: o Prohibits government from establishing a state-sponsored religion, or passing laws that favor one over the other.
Free Exercise Clause: First Amendment guarantees the "free exercise" of religion. o Employers must reasonably accommodate beliefs as long as employee has sincerely held beliefs.
The Establishment Clause prohibits government from establishing a federal sponsored religion or passing laws that favor one religion over another.
Searches and Seizures
The Fourth Amendment requires Police must have a search warrant based on "probably cause." o General searches through personal belonging are illegal. o Search warrants must be specific.
Fifth Amendment guarantees no person can be compelled to testify against himself in a criminal proceeding. - Does not apply to corporations or partnerships.
Due Process and Equal Protection
- The Fifth and Fourteenth Amendments provide "no person shall be deprived of life, liberty or property without due process of law."
- What is due process of law? Well, the court has divided due process of law into two types of due process. There is a procedural due process and substantive due process. The nice thing about it is the names actually go along with what they are.
Procedural Due Process
Procedural due process deals with the procedures involved in court, involved in being taken to court. There must be notice and a fair and impartial hearing. So, the rules themselves requiring you to appear in court have to be fair, they have to be equitable and that is procedural due process.
Substantive Due Process
- Focuses on the content or substance of legislation.
- Laws limiting fundamental rights (speech, privacy, religion) must have a "compelling state interest."
- Laws limiting non-fundamental rights require only a "rational basis."
the Fourteenth Amendment provides equal protection under law. So, all people similarly situated must be treated the same.
- Privacy rights. If you read through the constitution, where do you think you are going to find the right of privacy? If you said you don’t know, that is because it is not there. There is no right of privacy in the constitution, at least specifically enumerated.
- Instead, the Supreme Court decided that if you read the First, Fifth and the Fourteenth Amendments and you think really hard and you imagine the rights that this might encompass and you are really creative, then there must be a fundamental right of privacy that the U.S. Constitution implies. And it is based on that reasoning that we now have the right of privacy. Laws and policies affecting privacy interests are subject to a "compelling state interest" so a very high standard, it’s a fundamental right, and this concludes our discussion of constitutional law.
Chapter 6: Intentional Torts and Privacy
In this chapter, we are dealing with torts, but not just any tort, but intentional torts.
Basis of Tort Law
- A tort is a civil wrong; this is not criminal, this is civil. A civil wrong that a remedy is available in a court of law so when we deal with intentional torts these are specific torts that require an intent to commit.
- A tort that requires that there’s a remedy at law; a remedy at law meaning that damages are available to the person that is injured.
Damages Available in Tort Actions.
- Compensatory: Reimburse Plaintiff for actual losses.
- Special: Quantifiable losses, such as medical expenses, lost wages, and benefits.
- General: Non-monetary, such as pain and suffering, reputation.
- Punitive: Punish the wrongdoer.
So, to cover different types of damages; first of all, there’s compensatory damages. In a car accident, for instance, that’s going to be damage to your car; the car itself was damaged and in need of repair and that would be compensatory damages. Next, is special damages; special damages are damages that happen as a consequence of the injury, but are not the injury itself (quantifiable losses, such as medical expenses, lost wages because you can’t go to work, and benefits). And, then we have general damages; general damages are non-monetary such as pain and suffering, emotional distress, and so on. And, then punitive damages are damages that are allowed to punish the wrongdoer for having done something particularly egregious.
Intentional Torts Against Persons
Tortfeasor (person committing the tort) must "intend" to commit the act, which means: He intended the consequences of his act; or He knew with substantial certainty that certain consequences would result.
Types of Intentional Torts
Assault and Battery. → False Imprisonment. → Infliction of Emotional Distress. → Defamation. → Invasion of Privacy. → Business Torts. →
ASSAULT is an intentional, unexcused act that: Creates a reasonable apprehension or fear of, Immediate harmful or offensive contact. NO CONTACT NECESSARY.
separate in your mind civil assault and battery from criminal assault. In a criminal case, you do not have assault and battery; you have an assault. On the civil side, they separate the two; assault and battery are two different things. With that being said, assault is an intentional, unexcusable act that creates in a person a reasonable apprehension or fear of imminent, offensive contact, but no contact is necessary.
- BATTERY is the completion of Assault: Intentional or unexcused. Harmful, offensive, or unwelcome. Physical Contact. Plaintiff may be compensated for physical and emotional harm.
- Battery is the completion of that assault; the intentional or unexcused harmful threat of physical contact actually ends up with physical contact.
Defenses to Assault and Battery
Consent Self-defense (reasonable force) Defense of others (reasonable force) Defense of property
There are various defenses to assault and battery, one is consent. If someone consents to fight with someone else, then you can argue its not harmful contact, but anyhow consent is a defense. Now, as a note, you cannot consent to a crime. So, you cannot consent to having someone hit you or assault you. Self-defense is also a defense to assault and battery. Coming to the defense of another person and using a reasonable force is also a defense. And, then defense of property and there are certain limits as to what one can do to defend themselves and defend their property.
False imprisonment is the intentional: Confinement or restraint. Of another person’s activities. Without justification. Merchants may reasonable detain customers if there is probable cause.
false imprisonment is the intentional confinement or restraint of another person without justification
Intentional Infliction of Emotional Distress
An intentional act that is: Extreme and outrageous, that Results in severe emotional distress in another. Most courts require some physical symptom or illness.
it is an intentional act that is extreme and outrageous that results in severe emotional distress in another person. Now, this has to be something that physically happens and the person must suffer a physical symptom or result. It can’t be simply that they are psychologically affected; they have to be physically affected as well.
Defamation involves wrongfully hurting a person’s good reputation. Law imposes duty to refrain from making false statements of fact about others. Orally breaching this duty is slander; breaching it in print or media (and internet) is libel.
Damages for Libel
General damages are presumed; Plaintiff does not have to show actual injury. General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.
General damages are presumed; Plaintiff does not have to show actual injury. General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.
General Rule: Plaintiff must prove "special damages" (actual economic loss) to prevail for slander. Exception: Slander Per Se. No proof of damages is necessary when the statement involves: loathsome disease, business improprieties, serious crime, or that a woman is non-chaste.
Defenses to Defamation
Truth is generally an absolute defense. Privileged (or immune) speech. Absolute: judicial and legislative proceedings. Qualified: employee evaluations.
Two of them noted; the first one is the most important. Truth is an absolute defense. If what someone says is true, it’s not defamation. That is a defense to any claim of defamation so it has to be a false statement. And, in some situations the next defense, privilege, can come into play in a court proceeding or in other types of employee evaluations and so on.
Invasion of Privacy
Every person has a fundamental right to solitude freedom from public scrutiny. Use of person’s name or likeness. Intrusion on individual’s affairs or seclusion. Publication of information that places a person in false light. Public disclosure of private facts.
Use of another’s name, likeness, or other identifying characteristic for commercial purposes without the owner’s consent. Issues: Degree of likeness. Right of publicity as a property right.
Elements: Misrepresentation of material fact; Intent to induce another to rely; Justifiable reliance by innocent party; Damages as a result of reliance; Causal connection. Fact vs. Opinion (not puffery).
Abusive or Frivolous Litigation
Generally, each of has the right to sue when we have been legally injured. Torts related to abusive or frivolous litigation include: Malicious prosecution, and Abuse of process.
- Wrongful interference with a contractual relationship occurs when: Defendant knows about contract between A and B; Intentionally induces either A or B to breach the contract; and Defendant benefits from breach.
- Wrongful interference with a business relationship occurs when: There is an established business relationship; The Tortfeasor, using predatory methods, causes relationship to end; and Plaintiff suffers damages.
Business Torts - Defenses
Defenses to wrongful interference include: Interference with justified or permissible. Bona fide competitive behavior is a permissible interference even if it results in the breaking of a contract.
Intentional Torts Against Property
Trespass to Land occurs when a person, without permission: Physically enters onto, above, or below the surface of another’s land; or Causes anything to enter onto the land; or Remains, or permits anything to remain, on the land.
Disparagement of Property. Slander of Quality: Publication of false information about another’s product (trade libel). Slander of Title: Publication falsely denies or casts doubt on another’s legal ownership of property, resulting in financial loss.
Defenses to Trespass to Land: Trespass is necessary, or trespasser is a licensee. Trespass to Personal Property is the intentional interference with another’s use or enjoyment of personal property without consent or privilege.
- Identifying the Author of Online Defamation: usually a threshold barrier to filing suit. What about the liability of online service providers? CASE 6.3 Fair Housing Council of San Fernando vs. Roommate.com, LLC (2008).
- Statutory Regulation of Spam. Many states require unsolicited emails to have a phone number or return email address. Federal CAN-SPAM Act (2004) applies primarily to commercial emails. U.S. Safe Web Act (2006): Gives FTC powers to investigate and prosecute.
Chapter 7: Negligence and Strict Liability
- Negligence - When someone suffers injury because of another’s failure to live up to a required duty of care.
- Elements of Negligence: Duty: Defendant owed Plaintiff a duty of care; Breach: Defendant breached that duty; Causation: Defendant’s breach caused the injury; Damages: Plaintiff suffered legal injury.
Causation/Causation in Fact
Even though a tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. Causation is both: Causation in fact and, Proximate cause.
Causation in Fact - Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway? You can start with the "but for" test, i.e., but for the Defendant’s act the injury would not have occurred. This must be followed with "Proximate Cause" test.
Theory: An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability. Practice: 1. Was it the actual cause and 2. Was the injury foreseeable?
Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. A foreseeable risk is one in which the reasonable person would anticipate and guard against it.
The Injury Requirement and Damages
To recover, Plaintiff must show legally recognizable injury. Compensatory damages are designed to reimburse Plaintiff for actual losses. Punitive damages are designed to punish the tortfeasor and deter others from wrongdoing.
Duty of Landowners
- There’s invitees, there’s social invitees and business invitees, there are guests, there are tenants, there are trespassers.
- Depending on what status someone has the landowner has a different level of duty of care. To business invitees, the landowner has a duty to warn of any foreseeable risks. For social guests, the standard would be just a little bit lower and for trespassers even lower.
Duty of Professionals
Duty of Professionals: Professionals may owe higher duty of care based on special education, skills, or intelligence. Breach of duty is called professional malpractice.
Duty to Come to Aid of Another (Good Samaritan statute)
- No duty to rescue. Law requires individuals to act reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust. However, if rescue is attempted, the law requires due care and follow through.
- On the other hand, there is a special statute that is called the Good Samaritan statute. If you come to someone’s aid and although you try to help them, it was negligence on your part they cannot sue you. Now if your actions consist of gross negligence and obvious breach of duty, then they potentially could sue you.
Defenses to Negligence
- Some of the defenses to negligence:
- -assumption of risk (Assumption of risk is one of the most effective ones, that is the danger was obvious)superseding cause (An unforeseeable, intervening act that breaks the causal link between Defendant’s act and Plaintiff’s injury, relieving Defendant of liability)
- comparative negligence (Comparative negligence computes liability of Plaintiff and Defendant and apportions damages)
Special Negligence Doctrines and Statutes
- Res Ipsa Loquitor
- -Facts and circumstances create presumption of negligence by Defendant.
- -Burden of proof shifts to Defendant to show he was not negligent.
- Negligence Per Se occurs when Defendant violates a statute designed to protect Plaintiff:
- - Statute sets out standard of care.
- -Plaintiff is member of class intended to be protected by statute.
- - Statute designed to prevent Plaintiff’s injury.
- “Danger Invites Rescue” Doctrine
- Dram Shop Acts
- -put special liability on someone that serves alcohol and this is very serious and significant because it also applies to social events.
Theory of strict liability started with Rylands v. Fletcher (1868 England). Defendant’s liability for strict liability is without regard to: Fault, Foreseeability, Standard of Care, or Causation. Strict liability based on abnormally dangerous activities is one application.
Abnormally Dangerous Activities
Ultrahazardous or Abnormally Dangerous Activities: Involve serious potential harm; Involve high degree of risk that cannot be made safe; and Are not commonly performed in the community or area.
Other Applications of Strict Liability
Wild Animals: Persons who keep wild animals are strictly liable for injuries caused by the beast. Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous.
Chapter 8: Intellectual Property and Internet Law
Intellectual property (or "I.P.") is becoming more important because of the significant value of I.P. to many corporations, which in some cases may exceed the value of physical, tangible assets.
Trademarks and Related Property
A trademark is a distinctive mark, some emblem that a manufacturer will use to distinguish itself from others. It can be a slogan; it can be simply the name of the company.
Trademarks helps avoid consumer confusion.
Statutory Protection of Trademarks
Lanham Trademark Act (1946) creates incentives for companies to invest; prevents unjust enrichment of companies who infringe.
1995 Congress amended Lanham Act with Federal Trademark Dilution Act (1995).
Similar marks may constitute trademark dilution. A famous mark can be diluted by an identical mark and a similar mark. Similar mark can dilute, especially when the marks provide related goods or compete in the same market.
Register with U.S. Patent Trademark Office (www.uspto.gov) if: Mark is currently in commerce; or Applicant intends to put it into commerce within 6 months. Registration allows use of "® symbol.
Registration with USPTO gives national notice. Whenever mark is substantially copied (intentionally or unintentionally), owner has action for infringement.
Distinctiveness of Mark
Trademark must be sufficiently distinct. ‘Strong’ Marks: Fanciful and Arbitrary Marks: fanciful (Xerox and Kodak) and arbitrary (Dutch Boy Paint).
Service, Certification, and Collective Marks
- Service Mark: similar to trademark but used to distinguish services of one person/company from another.
- Certification Mark: used to certify the region, materials, mode of manufacturer, quality of specific goods or services.
- Collective Mark: used by an organization or association (Good Housekeeping, union marks).
Refers to the image and overall appearance of the product or service: distinctive décor at a restaurant, product names, or packaging. Same protection as trademark. Issue is consumer confusion.
Importation of goods that bear a fake (counterfeit) trademark damages U.S. businesses and may present serious health risks (nutritional supplements and drugs).
Stop Counterfeiting in Manufactured Goods Act (2006).
Trademarks apply to products: e.g., Pepsi-Cola®. Trade name applies to companies and are protected by federal law as well Example: Safeway®
- Cyber marks or otherwise known as internet addresses. The internet addresses are controlled by ICANN.
- The Internet Corporation for Assigned Names and Numbers, they distribute the names; they control who has access to what names, for the most part and that has been modified by some of the more recent rules in the Anti-Cybersquatting Consumer Protection Act of 1999, it provides protections for internet domain names and various companies that would like to use those names.
A patent is an exclusive federal grant to make, use, or sell an invention for 14 years and the invention must be novel, useful, and not obvious and it’s the first person to invent it, not necessarily the first person who files with the patent office that is able to claim the patent interest.
What is patentable?
Almost anything except: (1) laws of nature, (2) natural phenomenon, (3) abstract ideas.
- Patent Infringement: may occur even though product is not identical. Under U.S. law no patent infringement occurs when a patented product is made or sold in
- another country (AT&T vs. Microsoft, 2007).
Patent Infringement Remedies
Remedies. Patent holder can seek an injunction, monetary damages, and perhaps attorney’s fees and costs. In 2006, U.S. Supreme Court held that patent holders are not automatically entitled to an injunction against future infringing activities (see eBay, Inc. v. MercExchange, LLC).
Intangible property right granted by federal statute to creator of a literary or artistic production of a specified type. Works created after 1978 have automatic protection for life of the author, plus 70 years.
For publishing houses, copyright expires 95 years from publication or 120 years from creation.
Copyrights: What is Protected Expression?
Copyright can protect only something that can be made into a hard copy. So, it must be fixed in a durable medium. So, you can protect or copyright a pantomime, but you have to fix it in some durable medium. That could be by video, that could be by diagrams, and so on. It just has to be fixed in some durable medium. On the other hand, the expression of an idea can be copyrighted, but not the idea itself.
Copyrights: What is Protected Expression? pt2
Must fall into one of the following categories: Literary Works Musical Works Dramatic Works and Accompanying Music Pantomimes and Choreographic Works Pictoral, Graphic, and Sculptural Works (including cartoons, maps, posters, and stuffed animals). Motion Pictures and other Audiovisual Works (including multimedia). Sound Recordings. Architechtural Works.
Copyrights: What is Protected Expression? Exclusions
Section 102 exclusion any idea, procedure, process, method, system, method of operation, concept, principle, or discovery and that gets back to the formulas. The ideas, procedures, processes, those themselves are not copyrightable.
- Copyright Infringement: whenever unauthorized copying occurs. Damages: actual to criminal prosecution.
- "Fair Use" exception: Section 107 of the Copyright Act provides for exception to liability from reproduction of copyright under the "fair use" doctrine when material is used for criticism, comment, news, teaching, research.
Business process or information that cannot or should not be patented, copyrighted, or trademarked. Can include: customer lists, plans, research, formulae, pricing information, marketing techniques.
Protection extends to ideas and expression. State and Federal law on trade secrets. Uniform Trade Secrets Act and Economic Espionage Act (1996). Trade secrets in cyberspace.
International Protection for International Property
Berne Convention (WIPO) Every country who signed must recognize the author’s copyright. No notice required. More safeguards against infringement on the web. World Intellectual Property Organization (WIPO) Copyright Treaty 1996.
TRIPS Agreement of 1994. Created the World Trade Organization. Each member country must include in its domestic laws broad I.P. protection and enforcement measures.
Madrid Protocol. Signed by sixty-one countries, including U.S. in 2003. Allows a single country to apply for simultaneous trademark protection in all member countries.
Chapter 9: Criminal Law and Cyber Crime
Civil and Criminal Law
- Who brings the suit in civil law? The person that is harmed; in criminal law would be the government whether it’s the municipality, the county, or the state, or the federal government.
- The burden of proof is one of the key differences. In the civil lawsuit, the burden of proof is a preponderance of evidence. A preponderance of the evidence means that the plaintiff must prove by something than greater than 50 percent his position. In criminal law, it’s proof beyond a reasonable doubt and I’ll go into that a little bit more.
- A verdict, if you have a civil jury trial, it takes a majority or three-fourths majority to come to a conclusion. In criminal law, it has to be unanimous and this is one of the main differences between civil and criminal. You have to have a unanimous jury; either way to acquit someone they have to be unanimous, to find them guilty they have to be unanimous. If, in fact, the jury is not unanimous, then it can be re-tried a second time and the remedy or punishment available.
- In civil law, it would be money damages and criminal law includes fines and imprisonment.
Burden of Proof
- Criminal: Beyond a reasonable doubt, a doubt for which a reason exists.
- Civil: Preponderance of the evidence.
specifically concerning a reasonable doubt:
A reasonable doubt is one for which a reason exists and may arise from the evidence or the lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt. As a prosecutor, this is a very high burden. As a defense attorney, it is something you would hammer at again and again to the jury trying to raise any kind of reasonable doubt.
Classification of Crimes
First and foremost, we divide it into two categories, felonies and misdemeanors. Then those categories are divided into sub-categories. Felonies are serious criminal offenses and are punishable by a prison term. Misdemeanors are not as serious as felonies and are punishable, generally, by one year or less in the county jail.
Civil Liability for Criminal Acts
So, for example, you have an assault or on the civil side assault and battery. It’s a crime so it’s punishable by imprisonment, but it’s also a tort and it’s punishable by a judgment against that person for the damages that he incurred. Now, as an aside here, if you’re the victim of a crime and you want to get a judgment against someone, usually you would be much better off asking the court to impose that judgment when that person is convicted of the criminal offense rather than trying to make a civil claim and get him to pay that way. Because, in a criminal case, if a person doesn’t pay he can go to jail. In a civil case, if a person doesn’t pay, they don’t pay. They can file bankruptcy and so on.
Criminal liability is based on two factors. To be convicted of a crime, one must have committed the guilty act, which is called the actus reus, and have the guilty mind. They must have had the intent to cause a crime. Besides committing the act, one must also have a guilty mind, a mens rea, meaning that one must have had the intent to commit the offense that they committed. Now different types of crimes have different levels of intent. One could be a reckless disregard of the truth. Another intent could be intending the act for which you committed and so on. So, it depends on the type of crime as to what one’s intent is.
Corporate Criminal Liability
Since for criminal purposes corporations are treated as a person, corporations can be charged with criminal offenses. Now, it’s pretty difficult to put a corporation in prison so that just isn’t going to happen, but a corporation can be fined and if the officers or directors themselves participated in a criminal act, they can be prosecuted individually and they can go to prison.
Liability of the Corporate Entity
Some situations in which a corporation may be convicted of a criminal activity are if when an employee commits a crime within the scope of his employment or if the corporation fails to perform a legally required duty that they must perform or if a corporate officer authorized a crime to be committed by an employee.
Types of Crimes
The two main types of crime are violent crime or property crime. Violent crime is usually a crime against a person; property crime is a crime against the property.
"White Collar" Crime
- There usually non-violent and include things like embezzlement, theft, mail and wire fraud, bribery, insider trading. All these things would be considered white collar crime.
- The RICO statute provides that if a conspiracy involves the use of money to gain control or authority or involved in any other way in the conspiracy, then the government can seize the money to prevent any further conspiracy.
Operates illegitimately by providing illegal goods and services: Money laundering. RICO (criminal and civil liability).
Defenses to Criminal Liability
Justifiable Use of Force: Self-defense of people and property can use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force for property alone. No duty to retreat.
Use of Deadly Force in Washington
In Washington, the rule concerning the use of deadly force is that the law allows the use of deadly force in the lawful defense of oneself, for families and others, when there is reasonable ground to prevent actions of the person slain from committing a felony and doing harm and that there’s imminent danger that could be accomplished. Or in the actual resistance of a felony in the presence of others. In Washington state, there is no duty to retreat and that’s probably the case in most states as well, but not all states. And what that means is that even though you have a successful and effective way to avoid a confrontation with someone by retreating, if you have the lawful right to be where you are, then there is no duty to retreat and you have the right to defend yourself.
Necessity: criminal act necessary to prevent greater harm. Entrapment: Key issue: was the defendant pre-disposed to commit the act? Statute of Limitations. Immunity.
There are a number of constitutional protections regarding the procedures used in criminal court to prosecute criminals. Those constitutional safeguards are found, for the most part, in the first ten amendments.
- The Fourth Amendment provides protection from unreasonable search and seizure and that a warrant must be issued based on probable cause for the police or governmental agency to search.
- That no one be deprived of life, liberty, or due process of law. We’ve already talked about due process. Fifth Amendment prohibition against double jeopardy.
- And that no person can be required to testify or incriminate himself. There must be a speedy and public trial; a jury if that is requested.
- And that no one can be confined in jail with excessive bail and fines or subject to cruel and unusual punishment.
The Exclusionary Rule
What does the exclusionary rule do? It means that if the government has made an unlawful search and the court rules the evidence was unlawfully obtained contrary to someone’s constitutional rights, that evidence will be excluded from trial and that’s the exclusionary rule. The exclusionary rule is followed by the "Fruit of the Poisonous Tree" doctrine. The "Fruit of the Poisonous Tree" doctrine indicates that any evidence that is found as a result of the illegally obtained evidence is tainted, is "fruit of the poisonous tree" and it is excluded as well.
The "Miranda" Rule
Next, we have the Miranda Rule based on the case Miranda v. Arizona in 1966. In this case, the Supreme Court laid down a clear and definite statement of what rights a defendant has when they are arrested and that the police must advise someone of their rights, and most importantly concerning the Miranda case and subsequent cases, advise someone that they have the right to remain silent and they have a right to an attorney and that anything they say can and will be used against them. If someone is in custody and they’re the focus of attention by the police, then usually they have to be Mirandized or advised of their rights before they can be questioned and before that questioning or the answers would be admitted in court.
Talking about the general criminal process. What happens? First of all, there’s an arrest. Someone is taken into custody. Now, if for a felony, even if it’s committed outside of his presence, based on probable cause, but he cannot arrest someone for a misdemeanor if that is committed outside of the officer’s presence without a warrant from the court. So, after someone is arrested they are usually brought to the jail, booked into the jail, and then they have the initial appearance in court. At the initial appearance, the judge would advise the defendant of his rights: his right to an attorney, his right to remain silent, his right to a jury trial, to subpoena witnesses, to cross-examine witnesses, and so on. All of these are important rights that a defendant has. Once the information or indictment is filed with the court, then the defendant is arraigned, meaning he has to enter a plea to the charge at the arraignment of guilty or not guilty. If you enter a plea of not guilty, you can almost always change it to guilty later on, but if you enter a plea of guilty, you almost never get to change that back to not guilty later on. The usual approach if for the defendant to enter a plea of not guilty and for his attorney to enter into negotiations with the prosecutor to determine if, in fact, the case is based on valid evidence and what the charges could be reduced to, if it’s a plea bargain. If there is a plea bargain, the defendant would enter into a plea of guilty to whatever the amended charge is. If there is no plea bargain, then it would go to trial and that could be either a trial in front of the judge or a trial in front of the jury.
Criminal Process Cont.
Sentencing Guidelines. All defendants are sentenced the same. No or little discretion with Judge. Difficult to deal with exceptions, either good or bad.
A crime committed with or by or through computers and that becomes a cyber crime whether it’s fraud or some other type of crime. Some of the more common cyber crimes, many of you may know the Nigerian letter scam in which someone fraudulently induces the receiver of an email to transmit some money for whatever purpose and it comes with a variety of reasons, online auction fraud, id theft, phishing schemes, all sorts of different types of fraudulent actions are all cyber crime and punishable under the criminal statutes.
Cyber Crime hacking
The next aspect of cyber crime is known as hacking. Hacking includes malware and worms and attacking the computer through the software itself and there have been some very dramatic viruses, worms, and hacks that have affected not just individuals but the banking industry, the military, and a number of other areas that have been a serious threat.
prosecution of cyber crime
Prosecution of Cyber Crime. "Location" crime is an issue. Jurisdiction of courts is an issue. Computer Fraud and Abuse Act. Person is liable if he accesses a computer online, without authority, to obtain classified, private, or protected information. Penalties include fines and imprisonment.