Term
| What does Natural Law say about the Law? |
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Definition
| Law = Morality. Civil Disobedience justified if Law not equal to morality. |
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Term
| What does Legal Positivism say about the Law? |
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Definition
| Obey laws because they exist (nothing about morality) |
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Term
| What does Sociological Jurisprudence say about the Law? |
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Definition
| Law improves society and planning instrument. Base decision on social fact not just precedents. |
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Term
| How was Sociological Jurisprudence used in Brown v Board of Education? |
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Definition
| Psychological evidence – segregation created badge of inferiority. |
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Term
| What does Legal Realism say about the Law? |
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Definition
| Law interpreted by psychological lenses/predispositions of judge. |
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Term
| What does Critical Legal Studies say about the Law? |
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Definition
| Law favors rich/powerful. Law should be egalitarian, but never is due to property rights. |
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Term
| What does Law and Economics Movement say about the Law? |
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Definition
| Efficiency is key criteria for judges/law |
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Term
| What does Feminist School of Thought say about the Law? |
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Definition
| Law favors men in order to dominate over women. |
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Term
| How is Deductive Reasoning used to interpret Law? |
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Definition
| Used for basis of Stare Decisis (Rule by Precedent). |
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Term
| How is Reasoning by Analogy used to interpret Law? |
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Definition
| Extend precedent or distinguish new cases from precedent. |
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Term
| How is Statutory Interpretation used to interpret Law? |
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Definition
| Decide what legislature intended (difficult to do). |
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Term
| What are the main virtues of Stare Decisis? |
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Definition
| Uniformity and predictability. Others are efficiency, neutralize judge prejudice, wisdom of the past. |
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Term
| What is the main problem with the 5 varieties of Judicial Restraint? |
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Definition
| None of them are very consistent with each other (ex: abide by original intent of Constitution vs rule by precedent) |
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Term
| What are the provisions of the Erie Doctrine? |
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Definition
| Diversity case, Federal Court has to apply law of the State in which the offense was committed. |
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Term
| What does the controversy requirement of Timing say? |
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Definition
| “Ripe” and “Moot” – don’t come to court too early or too late. |
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Term
| What does the controversy requirement of Standing say? |
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Definition
| Only parties personally injured have standing. No third-party standing allowed (trees/wilderness don't have standing). |
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Term
| What does Causation state with respect to Standing? |
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Definition
| Action is direct cause of injury, removal must provide remedy. |
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Term
| ACLU v National Agency: why was the case dismissed? |
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Definition
| Lack of standing because plaintiffs could not prove that they had been wiretapped. |
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Term
| In distinguishing between the issue of Courts versus Legislature, the Courts have: |
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Definition
| Narrower jurisdiction in terms of remedies and policy review. |
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Term
| In distinguishing between the issue of Courts versus Legislature, Legislature has: |
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Definition
| Can initiate action before/after injury occurs, wider range of remedy, can assess impact of policies. |
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Term
| When it comes to arbitration, courts will generally defer to: |
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Definition
| Any arbitration clauses in contracts will provide the remedy and you may not bring the case to court. |
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Term
| Choice of forum clauses in contracts allows one to: |
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Definition
| Choose forum where one would litigate/arbitrate, and choose law clause that determines outcome. |
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Term
| Forum Non Conveniens states: |
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Definition
| Choice of forum clause may not be upheld if it is radically inconvenient forum. |
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Term
| What is the trend for resolution of Federal cases? |
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Definition
| Less trials. Settlement out of court with alternative dispute resolution techniques. |
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Term
| What is the controversial judicial power of the court? |
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Definition
| Power of Judicial Review is the ability of the Court to declare laws of Congress unconstitutional. |
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Term
| Clinton v City of New York |
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Definition
| The line item veto is unconstitutional because it gives Legislative power to Executive branch. |
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Term
| Supremacy clause states that: |
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Definition
| If Constitution and State Law are in direct conflict, Constitution and Federal Law take precedence. |
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Term
| Geier v American Honda Motor upheld: |
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Definition
| Supremacy Clause (Federal Law precedes State Law). |
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Term
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Definition
| Heightened scrutiny of courtroom access by disabled people because it is a fundamental right. Disabled people could sue State Government (despite 11th Amendment). |
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Term
| What does the Commerce Clause provide? |
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Definition
| Congress given exclusive jurisdiction to regulate commerce. |
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Term
| NLRB v Jones & Laughlin Steel Corp stated: |
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Definition
| Federal government was allowed to regulate production if it affected interstate commerce. |
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Term
| Heart of Atlanta Hotel and Katzenbach v McClung found that: |
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Definition
| Segregation interferes with interstate travel which interferes with serving food brought in from other states which gives jurisdiction to regulate business practices; therefore you cannot segregate. |
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Term
| What is the "Effects Test" with respect to the Commerce Clause? |
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Definition
| If it affects interstate commerce, then Congress can regulate it. |
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Term
| Between 1887 - 1937 the Commerce Clause was ________ by the Courts. |
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Definition
| Limited (distinction between Production and Transportation). |
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Term
| Between 1937 - 1995 the Commerce Clause was ________ by the Courts. |
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Definition
| Expanded. The Effects Test expanded the range of Federal Regulation. |
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Term
| Between 1995 - Present the Commerce Clause is being ________ by the Courts. |
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Definition
| Narrowed. (US v Lopez Gun Free Zones Act, US v Morrison Violence Against Women Act) |
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Term
| What kinds of speech are not given any protection? |
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Definition
| Fighting words, Libel, Obscenity. |
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Term
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Definition
| Definition for what is and is not obscene speech. |
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Term
| Which type of speech has the highest level of protection? |
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Definition
| Political Speech serves historic purpose of self-government. |
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Term
| Content Neutrality Doctrine says: |
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Definition
| Government can regulate speech in terms of time (when) and manner of protest (how), but must be evenly applied to all forms of speech. |
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Term
| What is the key issue of the Right of Association? |
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Definition
| If expressive association (political value or some other value) then can't be infringed/regulated. If commercial regulation, then it can be regulated. |
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Term
| What does Substantive Due Process mean? |
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Definition
| There is a limit on regulation taking away a substance (i.e. property right) without due process of law. |
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Term
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Definition
| Punitive damages was reversed because: insufficient reprehensibility, no reasonable relationship to compensatory damages, out of line with fine. Excessive punitive damages violate substantive due process. |
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Term
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Definition
| Individuals have that right, corporations/partnerships do not. |
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Term
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Definition
| According to Uniform Partnership Act, there does not have to be a written partnership agreement (oral partnership agreement sufficient). |
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Term
| The legal duties of a Director are: |
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Definition
| "The Big Three" - Due Care, Good Faith, Loyalty. |
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Term
| What is the Business Judgment Rule? |
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Definition
| Protects Directors from being sued. |
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Term
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Definition
| Narrowed defense of Business Judgment by expanding duty of care. Gross Negligence not covered (Board needs to be informed, not just take the word of 3rd Party). |
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Term
| Caremark Derivative Suit emphasized: |
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Definition
| Expands duty of Directors under Duty of Care. Director must monitor the legal compliance of the enterprise. Company has to have internal controls to comply with laws. |
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Term
| Abbott Labs Derivative Suit: |
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Definition
| Upholds duty of Good Faith even though directors were exempt from liability of breach of Duty of Care. |
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Term
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Definition
| Duty not to self-deal; conflicts of interest. Corporation's interest comes before Director's. |
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Term
| Revlon v MacAndrews case upheld: |
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Definition
| Board obligated to take the highest offer in a takeover. |
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Term
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Definition
| Don't have to take highest bid if other bid is made for strategic alliance purposes or if lower bid had better conditions for retaining viability of the company. |
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Term
| Pennsylvania Anti-takeover Statute |
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Definition
| Stakeholder protection. Corporations may take into account impact of other stakeholders (don't have to take into account highest bid). |
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Term
| What are some differences between US and UK law with respect to Director/Shareholder Power? |
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Definition
| Directors have more power in US, shareholders have more power in UK. |
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Term
| What are some differences of proof (Criminal vs Civil)? |
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Definition
| Criminal: proof beyond reasonable doubt, Civil: preponderance of evidence. |
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Term
| Booker Case found Federal Sentencing Guidelines to be... |
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Definition
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Term
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Definition
| If companies didn't pay legal fees of employees, it may be a violation of due process of accused employees and sacrificed client/attorney privilege. |
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Term
| Federal and State Tradeoffs with respect to sentencing guidelines: |
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Definition
| Cooperation you show to Federal government to lower sentence might be used as evidence in State as admission of guilt. |
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Term
| Crisis Management Model is a 7-step model sequentially organized and: |
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Definition
| Demonstrate corporate responsibility and consistent with sentencing guidelines to lower sentence. |
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Term
| Copeland v Baskin Robbins found: |
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Definition
| Duty to negotiate is NOT duty to agree; no expectation damages are justified. |
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Term
| Hamer v Sidway gives an example of which legal idea? |
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Definition
| Bargained-for exchange of legal detriment/benefit. Also known as Consideration. |
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Term
| With respect to Licensing Statutes, if one party is unlicensed, what can the other party do? |
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Definition
| Void the contract only if the issue is Regulatory in nature. If it was for revenue reasons, it cannot be voided. |
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Term
| Why must covenants not to compete be narrowly drawn and reasonable as to time/space? |
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Definition
| They are very strongly disfavored especially in California court. |
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Term
| If there is a promise that one has relied to his/her detriment but no action was taken, what recourse does that person have? |
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Definition
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Term
| What does Procedural Element mean with respect to unconscionability? |
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Definition
| Oppression of inequality in bargaining power and surprise or hidden terms. |
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Term
| What does Substantive Element mean with respect to unconscionability? |
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Definition
| One-sided and overly harsh (e.g. repossession of all purchases if late in a payment on one item). |
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Term
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Definition
| Example of both procedural and substantive. |
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Term
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Definition
| Release struck down because fault standard too broad, release should have been separate from ticket, no bargaining allowed. |
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Term
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Definition
| Type of Assent where party with power over another interferes with free will of innocent party; contract is voidable. |
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Term
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Definition
| Type of Assent where forcing one into a contract through fear or threats; contract may be rescinded. |
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Term
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Definition
| Mutual mistake relieves defendant. |
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Term
| Excuses for non-performance of a contract are: |
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Definition
| Alteration of the Contract, Statutes of Limitation; Bankruptcy; Objective impossibility of performance, commercial impracticability. |
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Term
| What is "Compensatory damages?" |
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Definition
| Damages awarded that may be difference between contract price and market price, may be lost profits, and may be specific performance. |
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Term
| What is "Consequential Damages?" |
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Definition
| Damages where in order to recover, breaching party must have known of special circumstances. |
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Term
| What is Warranty of Merchantability mean? |
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Definition
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Term
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Definition
| Example of Elements of Negligence (store should keep entrance free of ice, floors dry or signage warning of possible slipping. |
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Term
| What are the types of defenses to negligence? |
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Definition
| Contributory Negligence, Comparative Negligence, product misuse, assumption of risk, superseding cause. |
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Term
| What is Contributory Negligence? |
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Definition
| Any amount of negligence by the plaintiff totally bars recovery of any damages. |
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Term
| What is Comparative Negligence? |
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Definition
| Recovery is reduced by percentage of fault (plaintiff more than 50% at fault usually cannot recover any damages). |
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Term
| List rational for strict liability. |
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Definition
| Consumers should be protected, manufacturers need incentive to test, manufacturers and sellers can spread the social costs of injury. |
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Term
| In terms of product defect, this category deals with things like childproof caps, padded dashboards, crane used to sideload. |
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Definition
| Design Defect: Reasonably Foreseeable Misuses. |
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Term
| In terms of product defect, this category deals with things like snowblower with a safety guard. |
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Definition
| Design Defect: Feasibility of Safer Design. |
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Term
| In terms of product defect, this category deals with things like the design of a knife. |
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Definition
| Design Defect: Obviousness of Danger. |
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Term
| The DES Daughters case is an example of: |
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Definition
| Market-Share Liability: all firms are liable according to their market shares. |
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Term
| Why weren't the DES Granddaughters able to hold the firms liable for damages? |
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Definition
| Courts ruled that there was no proximate causation. |
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Term
| In which case would one of the defense strategies for Strict Liability NOT be a good defense? |
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Definition
| Product Misuse (unless a misuse is foreseeable). |
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Term
| In terms of product defect, vaccines fall into the category of: |
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Definition
| Social Utility of Product Considered. |
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Term
| The Cipollone Case proved the phenomenon of: |
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Definition
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Term
| What is Federal Preemption? |
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Definition
| State Law is invalidated when it is in direct conflict with Federal Law. |
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Term
| The Vioxx case showed that: |
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Definition
| Even though Merck won most of its cases, the company settled (Class Action) for $485 million due to risk of loss and litigation costs. |
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Term
| Why are employers not liable for the actions of their independent contractors? |
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Definition
| Principal liability does not exist. |
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Term
| Orchestrating mass resignations and leaving with client lists is an example of: |
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Definition
| Federman & Co v Langan Associates: Fiduciary Duties were violated. |
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Term
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Definition
| Liability for agent's torts. Principal is liable even for a "minor departure from business" (detour). |
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Term
| Although the Principal is liable for its own torts, it is NOT liable in the case where: |
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Definition
| Employee frolic -- when an employee departs from normal duties of business. |
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Term
| Riley v Standard Oil held: |
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Definition
| Employer is liable when the employee is on the way back to assigned duties (i.e. on the way back from the "frolic"). |
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Term
| The M Bank of El Paso v Sanchez case showed: |
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Definition
| Employers are not liable for independent contractor's torts with the exception for unusually hazardous activities (e.g. Repo Officer). |
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Term
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Definition
| The firm can be held liable if independent contractors are "authorized" by the firm to engage in unusually hazardous activities. |
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Term
| Personnel Administrator of MA v Feeney case: |
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Definition
| Veterans Preference Law for civil service jobs does not violate the 14th Amendment even if it has a discriminatory impact on women. |
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Term
| Title VII Standards makes these illegal: |
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Definition
| Discriminatory Intent and Discriminatory Impact. |
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Term
| Give an example of Gender-Plus discrimination. |
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Definition
| Discrimination against married women. |
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Term
| Mixed Motive cases are examples of: |
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Definition
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Term
| Price-Waterhouse v Hopkins |
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Definition
| Mixed-Motive: shifts the burden of proof to the employer to show that a legal motive led to the decision not to hire or promote. |
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Term
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Definition
| Example of discriminatory intent due to different weight policies for male and female flight attendants. |
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Term
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Definition
| High-school diploma was required to become a janitor. Discriminatory impact because many African Americans in the area dropped out. |
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Term
| The Equal Pay Act of 1963: |
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Definition
| Provided that two jobs whose primary duties are alike must be paid equally. |
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Term
| Endres v Indiana State Police |
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Definition
| No obligation to reassign a Baptist police officer from enforcing gambling laws despite the officer's personal perspective on gambling. |
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Term
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Definition
| Prohibits discrimination against workers over 40 and prohibits mandatory retirement for non-managerial employees. |
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Term
| Disability discrimination and religious discrimination both: |
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Definition
| Require reasonable accommodation. |
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