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| Article 1 of the constitution |
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| sets out the powers of Congress |
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sets up the house of representatives
-representatives are elected based on population |
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sets up the senate
-2 senators from each state (100 in total) |
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| lists the powers of Congress |
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| borrowing money, coining money, post office regulation, declaring war, raising an army |
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| sets out the powers of the president |
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| regulates foreign commerce, interstate commerce, and commerce among Native Americans |
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| sets out the power of the judiciary (Supreme Court) |
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Freedom of speech, religion, press, expression
-limited to time, place, and manner
-does not protect against defamation, pornography, obscenities |
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| protection against unreasonable search and seizure |
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| The 1st Amendment protects: |
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| speech, religion, assembly, freedom of the press, right to petition to the government |
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Congress shall make no law respecting the establishment of religion
-cannot support or interfere with any religion
-cannot help or hinder religion |
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| no laws can be made to hinder people from practicing religion |
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| looking through a person's things or clothes (pat down) |
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taking someone's property
arresting someone |
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| when is search and seizure reasonable? |
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| when there is probable cause |
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| more likely than not that a crime is being committed |
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| a crime being committed in front of the police is probable cause |
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| tangible evidence that has been seized |
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| If the police have probable cause: |
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| contraband is admissible in court and the arrest is legal |
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| If the police do not have probable cause: |
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| the evidence is not admissible in court and the arrest is unconstitutional |
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| a piece of paper signed by a judge which allows the police to search a person's house or belongings |
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| When signing a warrant, the magistrate (judge): |
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| decides whether there is enough evidence for a warrant |
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| when trying to get a warrant: |
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| the police must convince the judge that there is enough evidence for a warrant |
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| the police can search your home and any contraband they find becomes admissible in court |
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| The Commerce Clause is located in: |
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congress regulates_________,
while states regulate _________. |
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interstate commerce
intrastate commerce |
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| a state passes a law that impedes interstate commerce, despite the fact that only congress can regulate interstate commerce. The statute can remain if it protects health, safety, and welfare |
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| If intrastate commerce effects commerce in other states, it falls under the classification of interstate commerce and can be controlled by Congress |
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| If you are engaged in interstate commerce: |
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| all federal laws apply to you |
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| The concept of due process is located: |
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| in the Constitution, in the 4th and 14th amendment |
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substantive due process, protects rights and fairness of the individual as a citizen
-citizens are given basic rights |
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procedural due process
-protects against unreasonable actions by the police |
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| three levels of review for substantive due process: |
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| strict, middle, low-level |
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states that pass discriminatory laws in this category must have a compelling reason for doing so
-protected classes include: race, origin,religion, color, age, disability |
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states that pass discriminatory laws in this category must have a reason
-protected classes include:
sex
gender |
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states that pass discriminatory laws in this category do not need to show a reason.
protected classes include:
ugly
obesity
sexual orientation |
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| race, religion, color, origin |
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a civil wrong for which a court may award damages (money)
a tort does harm to person or property |
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| intentional, unintentional |
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| intentional torts consist of: |
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-assault, battery, intentional infliction of emotional distress, and false imprisonment
-trespass to land, trespass to chattels, conversion |
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| elements of intentional torts |
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-an act of conscious volition
-intent
-damages |
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| the defendant was conscious when committing the tort |
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| the defendant was aware of the possible consequence of his actions |
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| injuries to one's person or property |
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| young children and the mentally ill |
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| fear of unwanted bodily contact |
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| intentional infliction of emotional distress |
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extreme or outrageous conduct causes extreme emotional distress
-actual damages must be proven (receipts from a therapist etc.) |
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| confining the plaintiff to a bounded area |
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| a place with no reasonable means of escape. could be a room, a yard, a city, or even a state |
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| anything attached to real property, the removal of which would leave a hole |
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| all property that is not real |
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damages to personal property
-must prove actual damages |
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putting one's foot down on another's land
-must prove actual damages |
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damaging personal property so severely that it warrants payment for the entire full value of the property
-actual damages
-stealing something and losing or selling it can be considered conversion |
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| consent, self-defense, defense of property, public necessity, private necessity |
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| plaintiff agreed to the tort |
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| defendant was trying to protect himself |
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| a tort can be committed in defense of one's land (burglars) |
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| a tort committed to defend oneself, the result being a complete defense |
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| a tort committed to defend oneself, the result being that the defendant must only pay actual damages (partial defense) |
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| In order to prove negligence, one must prove: |
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-duty
-breach
-proximate cause
-damages |
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| the standard of care expected by the defendant, determined by a statute or the reasonable person standard |
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| reasonable person standard |
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what a reasonable person would have done in the same situation as the defendant
-expert witnesses are called to testify in court |
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| a prior incident puts the defendant ________, which means_____________ |
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-on notice
-the standard if care is higher because the occurrence has happened before |
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| the defendant fell below the standard of care |
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| the defendant's led directly to the foreseeable result of the plaintiffs injuries (direct causation) |
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plaintiff suffered physical or mental harm
-physical: doctor's bills
-mental: pain and suffering |
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| a concept adopted by some states which states that any negligence by the plaintiff will result in the plaintiff receiving no money |
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| a jury determines what percentage that the plaintiff was negligent and subtracts this percentage from the total amount of money awarded |
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| plaintiff engaged in an ultra-hazardous activity and cannot recover damages |
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| who pays when a consumer is injured by a product? |
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| breach of warranty, negligence, strict liability |
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a promise about the value of a product, can be express or implied
-found in the Uniform Commercial Code |
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| a statement, directly stated or written, which is based on fact |
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| expression of the seller's opinions to the buyer |
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| the only reason you bought something was because of the warranty |
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2 types:
-implied warranty of merchantability
-implied warranty of fitness for a particular purpose |
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| implied warranty of merchantability |
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product is fit for ordinary use and for ordinary purposes.
-only applies to stuff being bought from a store |
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| implied warranty of fitness for a particular purpose |
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| created when the buyer asks the seller a question about the behavior of the product, and the seller responds. The seller's response becomes a warranty |
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duty, breach, proximate cause, damages
-usually hardest to prove a breach of warranty, and often there is no statute |
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| if a defective product placed into the stream of commerce that caused bodily harm, the plaintiff can successfully sue |
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| strict liability is different from negligence because: |
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| it is not necessary to prove a standard of care |
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| defenses to a warranty case |
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-express warranty was not given
-no implied warranty of merchantability was given, or the product is sold "as is"
-no conversation occurred between buyer and seller, therefore the IW of fitness for a particular purpose |
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| comparative, contributory, or assumption of risk |
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| strict liability defense: |
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-if the product was altered
-if the product is not being used as intended
-if there is negligence on behalf of the plaintiff |
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| our loved ones are hurt or dead, and we demand money to punish the the company that did it |
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| plaintiff attorney viewpoint |
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| the ability to sue for product liability keeps corporations honest and making safe products |
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| we did everything we could possibly do to make it safe |
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| lawyers are using law to make money off manufacturers and put them out of business |
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