403 MT 1

Card Set Information

403 MT 1
2014-02-18 23:52:28


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  1. Hierarchy of courts
    • 1. US Constitution
    • 2. Treaties (reqs. Pres + 2/3 senate; bypasses Congress)
    • 3. Fed statutes
    • 4. State constitutions
    • 5. County/city ordinances
    • 6. Private laws
  2. Natural Law School
    • If the law is not just it should not be followed
    • You were born with natural rights
  3. Historical Law School
    Law is an evolutionary process of social customs which appreciates precedent to transmit important values to the next generation
  4. Sociological Law School
    • The law is a tool for social justice
    • Use law to change societal norms
  5. Other 2 schools of law you have to know
    • Analytical
    • Critical Legal Studies
  6. Jurisdictional reqs
    • 1. standing to sue
    • 2. jurisdiction (2 ways)
    • 3. venue
  7. Standing to sue
    Pt has to have suffered some injury or will be immediately injured
  8. Jurisdiction (2 ways)
    • 1. In personam: file suit where the person lives
    • 2. In rem: jurisdiction over where the property is
  9. Jurisdictional venue
    • Cases heard by nearest court to the incident or where the parties reside
    • Courts can transfer in interest of justice or convenience
    • Forum shopping is bad
  10. Alternative dispute resolutions
    • Negotiation
    • Mediation
    • Arbitration
  11. Negotiation
    • Settlement discussions w/neutral 3rd party, usually an expert or specialist
    • Enter voluntary settlement agreements
  12. Mediation
    • Neutral 3rd party assists, but usually meets with parties separately
    • Cannot make a decision or award; just tells parties what a ruling will be, then parties hopefully resolve
  13. Arbitration (2 kinds)
    • Binding: arbitrator can state monetary damage and you can take that to court to bind judgment
    • Non-binding: you can go to court to get it enforced; parties settle or go to trial/binding arbitration
  14. Pleading components
    • Complaint (Pt's action): Pt files a complaint, which initiates a lawsuit. Complaint + summons served to defendants
    • Answer or Demurrer (Df's action): must be served upon court and Pt within statutory time. Answer - admit or deny; demurrer - even if facts as alleged by Pt are true, does not sustain cause of action sought
    • Cross complaint
  15. If Df fails to answer a complaint filed?
    Pt can have a default judgment entered; now Pt only has to prove damages
  16. Cross-complaint
    • Pt -> cross-defendant
    • Df -> cross-complainant
  17. Discovery components
    • Depositions
    • Interrogations
    • Request for admissions
    • Production of documents
    • Exams
  18. Depositions
    • Oral testimony before trial
    • Preserves testimony (can be used if party is ill or dies before trial)
  19. Interrogations
    • Written questions; send and they reply back
    • Form interrogatories: checklist of Q's; very vague and generalized
    • Special interrogatories: limited to 35 Q's but ask whatever you want
  20. Request for admissions
    Ask them to admit or deny something
  21. Production of docs
    Request the other part to give all relevant documents except any privileged, attorney work product and docs protected by privacy rights
  22. Exams (discovery)
    • Make them get physical or mental exams
    • Demand for Bill of Particulars: requires itemization of each cause of action and its monetary payment
  23. Utilitarianism
    Greatest good to society
  24. Kantian
    Reason should be used to determine how to behave
  25. Supremacy clause
    • Fed Constitution and fed. laws and treaties made pursuant to it are supreme law of the land
    • Where congress has shown legislative intent to exclusively regulate an area/activity, any state law is preempted
  26. Commerce clause
    • Congress can regulate commerce of Native Americans, Foreign countries, and interstate 
    • Prevents states from taxing each other
  27. Privileges and Immunities Clause
    States cannot deprive citizens of other states of the privileges and immunities it affords its own citizens (except in-state tuitions)
  28. States Regulatory Powers
    Police: regulate own affairs within borders
  29. Taxing and Spending Powers
    Empowers Congress to levy taxes on all states
  30. Freedom of Speech
    • Applies to fed., state, local gov't
    • Scope: freedom not to speak, to speak anonymously, symbolic speech
    • Types of protection vary
  31. Fully protected speech
    • Cannot be regulated or stopped
    • = anything not under limited or unprotected
  32. Limited protection speech
    • Gov't can place reasonable content-neutral time, place and manner restrictions on speech
    • Offensive speech (F-word on TV at a certain time)
    • Commercial speech (where you put the billboard)
  33. Unprotected speech
    • Gov't can absolutely forbid
    • Dangerous
    • Fighting words
    • Incitement of illegal activity
    • Defamation
    • Child born
    • Obscene (case-by-case)
  34. Freedom of Religion
    • Private? Do what you want. Public? No.
    • Defined loosely as a "sincere belief in a supreme being"
    • Establishment Clause
    • Free exercise clause
  35. Establishment Clause
    • Gov't must be neutral
    • Gov't can't establish a religion
    • Gov't can't play favorites
  36. Free exercise clause
    • Gov't can't interfere with the exercise of a religion
    • Freedom is not absolute (N. Americans trying to say smoking that drug is "religious")
  37. Equal protection clause
    States must treat similarly situated individuals in a similar manner
  38. Strict Scrutiny
    • Race, national origin, voting, domestic travel
    • Law upheld if necessary to achieve a compelling gov't purpose
  39. Intermediate scrutiny
    • Gender
    • Law upheld if substantially related to a gov't purpose
  40. Rational basis test
    Law upheld if rationally related to a legitimate gov't interest
  41. Due Process Clause
    • Must be provided before a person's life, liberty or property is taken (2 types)
    • Substantive: asks if gov't has an adequate reason to take the LLP
    • --> fundamental right is limited --> strict scrutiny test (marriage, children, procreation and everything else under strict scrutiny)
    • Procedural: gov't must provide notice and hearing reqs before person deprived of LLP
  42. Which due process do you apply?
    • Substantive: if law denies rights to everyone
    • Equal protection: if law denies rights to some while allowing to others
  43. Tort
    • Wrongful act that injures another's body, property or reputation
    • Pt's always seek monetary damages, sometimes punitive
  44. Intent
    Acts of omissions that are intended or could reasonably be expected to bring about the consequences of the tort
  45. Transferred intent
    • Tortfeasor intends to commit a tort against a person but either commits a different tort against that person or injures another person
    • Tortfeasor held liable for intentional tort caused to victim
  46. Assault
    • Threat or action of imminent harm or offensive contact causing reasonable apprehension at the imminent harm
    • Future harm? No, not an assault
    • You have to be aware that it happened
  47. Battery
    • An intentional harmful or offensive contact to a person
    • Direct or indirect contact OK
    • You don't have to know it's happened
  48. Negligence and components
    • Failure to exercise reasonable care under the circumstances to another that causes harm
    • Duty of care
    • Breach of duty
    • Causation
    • Harm
  49. Duty of care
    • A person must provide an amount of care that a reasonable person would, acting under similar circumstances; intent is irrelevant
    • Children under 4 are incapable of negligence
    • Statutory duty of care: defined by statute or case law
  50. Breach of duty (all or nothing!)
    • When a person fails to act as a reasonable person would under similar circumstances
    • No duty to rescue someone in danger unless you caused the harm or there's a preexisting relationship
  51. Negligence per se
    Where a statute creates a duty of care and the person harmed is a class of person meant to be protected
  52. Res ipsa loquitur
    • The thing speaks for itself --> you don't know who caused the harm
    • When parties unable to determine what Df did wrong then switches the burden of proof from Pt to Df to prove they were not negligent
    • Requires that Df had exclusive control of instrumentality of situation that caused Pt's injury, and injury does not normally occur w/o negligence (think gauze left in someone during surgery)
  53. Causation
    • Actual cause: "but for" the Df's conduct would the accident have occurred?
    • Proximate cause: is it "fair" for there to be liability under the circumstances
  54. Harm
    • Negligence reqs Pt to have suffered injury or damage to property
    • Pure comparative negligence: Pt will recover even if at 99% fault
    • Partial comparative negligence: Pt will only recover if 49% or less at fault; reduce this amount from Pt's recovery of damages
  55. Strict liability
    • Liability without fault
    • A party will be liable regardless of intentions or exercise of reasonable care
    • Cannot waive or disclaim
  56. Animals
    • Domesticated: no strict liability unless there is knowledge of a domesticated animal's dangerous propensity
    • Wild: keepers strictly liable for any injury
  57. Products liability applications
    • Product must be somehow defective
    • Not services; products only
    • Applies to merchants only
  58. Defect in manufacture
    • If product is different and more dangerous than a properly made product
    • Occurs when a manufacturer fails to properly assemble, test OR adequately maintain quality controls
  59. Design defects
    • When a Pt can prove there is an alternative design that is safer and is economically feasible
    • Likelihood of harm > burden to manufacture and design safer products
  60. Failure to warn
    A product is inherently dangerous and cannot be made safer AND the product lacks an adequate and conspicuous warning label
  61. Defect in packaging
    Certain manufacturers owe a duty to childproof or tamperproof certain products
  62. Failure to provide adequate instructions
    If you fail at this, manufacturers and supply chain are liable
  63. Trade secret
    • Proprietary, confidential business secret that sets it apart from competitors
    • Last indefinitely but owner must take ALL reasonable precautions to prevent it from getting out
    • Lawful to reverse engineer
  64. Patent
    • Grants a property right to inventor with exclusive rights
    • Designs, plants, or utilities
    • 20 years (design for 14); begins from date application is filed
    • If something was being used by the public for over a year, can't get a patent
    • First-to-file rule
  65. Patent reqs
    • Novel - has not been invented or used in the past
    • Useful
    • Non-obvious or apparent to a reasonable person
  66. Copyright durations
    • Author's life + 70 years
    • 95 years after publication or 120 years from creation
  67. Trademarks/servicemarks reqs
    • Distinctive, OR
    • have acquired a secondary meaning (brand name that has evolved from an ordinary term)
    • Must be used in commerce
    • Duration: 10 years (can be renewed indefinitely)
  68. Supreme court - Majority decision
    When most of them agree on the outcome and reasoning
  69. Supreme court decision - plurality
    When they agree on the outcome but don't agree about the reasoning
  70. Constitutional powers
    • Federalism: where fed and state gov'ts share powers
    • Enumerated: powers delegated to fed gov't from state
    • Reserved: powers not specifically delegated to fed gov't are reserved to state gov'ts
  71. Maximizing profits theory
    The theory of business social responsibility that holds that a business owes duties solely to produce the highest return for its shareholders
  72. Intervention
    A pre-trial order when a court allows a third party to join a lawsuit in order to protect their interests
  73. Federalism
    State and fed gov'ts share powers