Term
| 4 sources of law in order of supremacy |
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Definition
| 1) U.S. Constitution 2) Legislature (50 states + D.C.) 3) Case Law (aka precedent) 4) administrative law (fed, state, local) |
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Term
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Definition
| in order of priority, e.g., no law can contradict Constitution |
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Term
| Does the U.S. use civil law or common law? |
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Definition
| common law, except Louisiana |
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Term
| Does most of the world use civil or common law? |
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Definition
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Term
| what is the difference btw common law and civil law? |
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Definition
| common law (aka case law) uses case law to interpret broad laws. Our law grows organically. |
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Term
| What are the State Ct system tiers, in order of supremacy? |
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Definition
| 1) Ca Supreme Ct 2) Ca Ct of Appeals 3) Superior Ct |
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Term
| What are the Fed Ct system tiers, in order of supremacy? |
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Definition
| 1) Supreme Ct 2) Circuit Ct 3) District Ct |
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Term
| What is "subject matter" and what 4 things must it have? |
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Definition
| "matter for the court" and 1) in personam 2) in rem 3) quasi in rem 4) long-arm statute |
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Term
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Definition
| personal, based on domicile. can have multiple residences, but only 1 domicile |
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Term
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Definition
| "over the thing"; ABOUT the property. e.g., State of Idaho sues someone for not paying property taxes |
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Term
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Definition
| attach the lawsuit to a property for jurisdiction purposes. e.g.. Mass resident vacationing in Ca collided with car causing driver to have high bills. State of Ca can attach Mass resident's Ca. property by seizing, selling & giving proceeds to victim. NOte: any amt over medical bills must be given to D |
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Term
| what is long-arm statute? |
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Definition
| used when there is "minimum contact", other rules, usu revenue, % varies by state, ct issues accounting |
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Term
| what are the 2 ways to get into the Fed. ct. system? |
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Definition
| 1) Federal Question 2) Complete Diversity of Citizenship |
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Term
| what is a "federal question?" |
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Definition
| one of 2 ways to get into Fed ct system. Subject matter must be 1) on a federal question such as Con Law or 2) Fed Crime or 3) crime on Fed land |
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Term
| what is complete diversity of citizenship? |
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Definition
| removes from State Ct. has 2 requirements: 1) all parties must reside in ALL different states (complete), and 2) > $75K |
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Term
| what does ADR stand for and what are its advantages? |
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Definition
| Alternative Dispute Resolution. faster & cheaper than going to court? |
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Term
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Definition
| 1) arbitration 2) mediation 3) mock trial |
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Term
| Describe the 2 types of arbitration. |
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Definition
1) binding - can't appeal
2) non-binding - can appeal |
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Term
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Definition
| Both parties select a neutral 3rd party (often an expert) to facilitate communication & suggest ways to solve dispute |
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Term
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Definition
| Pool of ~ 40 people, about 6 selected hear a "mock case". Atty tells client outcome, so that they can decide if they want to proceed to trial |
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Term
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Definition
| location within same jurisdiction |
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Term
| What is State jurisdiction? |
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Definition
| none. All 1 ct system, can be any county |
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Term
| for what reason(s) can one party change venue? |
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Definition
| 1) inconvenient 2) potential jury prejudice |
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Term
| What are Federal jurisdictions? |
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Definition
| 1) Supreme Ct 2) 13 Circuit Courts (book says 12, but there is one in D.C.)= for intellectual property) |
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Term
| what does it mean to say a case must have "legal standing"? |
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Definition
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Term
| Describe the process of getting to trial? |
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Definition
| complaint must be filed within 30-60 days. service of process (SOL). Defendant Answers |
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Term
| Right to Due Process is guaranteed under what amendment? |
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Definition
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Term
| what is the Statute of Limitations? |
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Definition
| time limit that one can sue. court may stop the clock on SOL while you try to locate a party. |
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Term
| how does the defendant answer a complaint? |
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Definition
| defense or counter-complaint. |
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Term
| does a defendant who counter-sues need to serve it on the other party? |
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Definition
| No, only file in court, usu file courtesy copy to other party |
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Term
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Definition
| production of documents, witness list, depositions |
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Term
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Definition
| asking of questions, testimony under oath form witness, can make objections during |
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Term
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Definition
| jury pool must be cross-section of surrounding community. however, actual jurors are up to the attys. depending on state, each atty gets to reject 9-11 (12 in some) |
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Term
| who always makes the first opening statement? |
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Definition
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Term
| what are jury instructions? |
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Definition
| Judge gives instructions to the jury what the law is so that they can make decisions based on facts. The judge's instructions are usually a combination of both attys instructions. The judge makes legal decisions. |
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Term
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Definition
| Civil: $, appeals process is usu 3-judge panel who review parts that you are appealing (usu judicila errors). Criminal: $, penalty, death |
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Term
| what are 4th amendment rights? |
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Definition
| protects against "unreasonable search & seizure", requires judicial warrant that is supported by probably cause |
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Term
| what is probable cause for a warrant? |
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Definition
| "substantial likelihood that criminal activity is afoot" |
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Term
| what are exceptions to getting a warrant? |
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Definition
| 1) plain view 2) incident to lawful arrest (hi speed chase) 3) evanescent evidence (before warrant can be obtained) |
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Term
| what 2 things does the law need for "stop & frisk?" |
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Definition
| 1) reasonable suspicion to stop 2) further reasonable suspicion to frisk |
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Term
| what is the exclusionary rule? |
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Definition
| aka "roots of poisonous tree" doctrine. if roots are poisonous, so is fruit. if search and seizure was "unreasonable" then all evidence gathered as a result is excluded |
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Term
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Definition
| a warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. |
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Term
| what are some requirements of Miranda rights waivers? |
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Definition
| 1) must be understandable by non-lawyer, layperson 2) must be visible in bold print |
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Term
| what might be an exception to Miranda rights? |
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Definition
| voluntary statements aren't covered Eg person runs from home waving gun saying, “I shot them.” |
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Term
| Do U.S. laws apply to us even when we travel outside the U.S.? |
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Definition
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Term
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Definition
| intentional taking of another's property w/ intent of not returning it. eg following someone into library & taking their textbook; pickpocket |
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Term
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Definition
| larceny w/ threat of force, eg mugging |
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Term
| according to the text, what is the difference between larceny and robbery? |
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Definition
text: Most states define robbery as the forceful and unlawful taking of personal property. If force or fear is absent, the crime is theft. Someone who steals your wallet undetected while you are walking down the street has committed theft. Someone who tackles you, pins you down, and wrests your wallet from you has committed robbery.
“ p 150 |
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Term
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Definition
| unauthorized entry into any building, at any time, with intent to commit felony therein |
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Term
| Is it burglary if you break into someone’s home to spy on them, then see something you didn’t know was there and take it? |
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Definition
| No, because you did not break in with the intent to take it. eg. merely decided to take it after |
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Term
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Definition
| taking $ before it is in the possession of its owner. doer must be in position of trust. eg restaurant manager skimming by voiding ticket |
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Term
| what is the difference between larceby and embezzlement? |
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Definition
| larceny is taken FROM; embezzlement is taken BEFORE |
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Term
| what are the 5 elements of fraud? |
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Definition
| 1) false factual statement 2) knowledge of its falsity, aka reckless disregard of the truth 3) intent to induce reliance 4) actual reliance (text: “a victim’s reasonable reliance on the false representation” p. 153) 5) harm |
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Term
| what are elements of bribery? |
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Definition
| 1) asking is enough, does not need to be accepted 2) must involve government official 3) can be any kind of favor |
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Term
| what is extortion and how is it different than blackmail? |
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Definition
| government official must be involved. and blackmail involves private parties. |
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Term
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Definition
| 1) alter or amend document that changes legal outcome of one of the parties (i..e false check endorsement) |
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Term
| is it forgery if you hand in someone else's homework with your name on it? |
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Definition
| NOT forgery if you hand in someone else’s homework with your name on it because it’s not a legal document |
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Term
| what are 5 criminal defenses? |
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Definition
| 1) infancy 2) intoxication 3) insanity 4) entrapment 5 self-defense |
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Term
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Definition
| persons excused from liabilty due to age. 0-6 => lack mental intent; 7-14 => rebuttable presumption. meaning you assume they lack mental intent and State must prove mental intent 15-17 =>? presumed capable, and must prove they lacked mental intent? |
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Term
| what is involuntary intoxication defense? |
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Definition
| person who was forced to ingest or involuntarily ingested an intoxicating agent, which left the person unable to understand that the act committed was wrong. |
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Term
| what is a voluntary intoxication defense? |
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Definition
| a poor defense except in a charge of 1st degree murder, but not manslaughter |
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Term
| what is insanity defense? |
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Definition
| psychiatrists usually testify to defendant’s mental state at time of crime. Standards vary from state to state, but in general defendants can claim insanity if mental condition when the crime was committed was so impaired that they could not (1) understand the wrongful nature of the act or (2) distinguish between right and wrong in a general sense. |
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Term
| what is entrapment defense? |
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Definition
| applies if the idea for a crime originated with a police officer or some other government official who suggested it to the defendant, who would not otherwise have committed the crime. |
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Term
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Definition
| aka justifiable use of force. must be reasonable. text page 165: best-known example is self-defense in protection of your life. However, in many jurisdictions, justifiable use of force can apply to defense of your dwelling or other property and to the prevention of a crime. The force used must be reasonable, which is understood in the law to be enough to make an adequate defense but not more than necessary for protection. Deadly force (sufficient to kill or cause serious bodily harm) is unjustifiable where the threat of deadly force does not exist, and it can never be used to protect property, as the law values life over property.” |
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Term
| what is the diff btw felony & misdemeanor? |
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Definition
text p. 150 Felonies include serious
crimes, such as murder, that are punishable by imprisonment for more than one year or death. Misdemeanors are less serious crimes punishable by fines or imprisonment for less than one year. |
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Term
| what are 3 types of fraud and which type have we covered so far in class? |
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Definition
| 1) inducement 2) concealment 3) conception. We have been covering inducement |
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Term
| what is defamation of character? |
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Definition
| written = libelous; verbal = slander. elements: 1) false factual statement 2) publication |
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Term
| what is an absolute defense of defamation of character? |
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Definition
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Term
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Definition
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Term
| what are the 3 kinds of torts? |
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Definition
| 1) intentional 2) negligence 3) strict liability |
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Term
| how do torts differe from criminal wrongs? |
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Definition
criminal: 1) state v indiv 2) pros v D 3) $, prison, death
torts (civil): 1) indiv v indiv 2) Plaintiff v Defendant 3) $, equity |
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Term
| what types of damages are awarded? |
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Definition
| 1) legal 2) equitable relief 3) some are both legal & equitable |
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Term
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Definition
| 1) compensatory (make whole again 2) punitive (punish & set an example) 3) nominal (may be small, but opens door for atty fees to be covered) |
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Term
| what are equitable relief damages? |
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Definition
| court orders: 1) injunction (to stop) 2) specific performance |
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Term
| what is an example of both legal & equitable relief damages? |
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Definition
| copyright infringement suit might be rewarded both with a court injunction to stop its use and profits from the use of the copyright |
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Term
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Definition
| intentional tort. victim is put in position of fear of immediate bodily harm or injury or contact |
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Term
| is it assault if you merely threaten someone from afar who can get away from you? |
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Definition
| no. would be assault if you were standing over them. |
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Term
| from whose perspective should you always evaluate assault or battery? |
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Definition
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Term
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Definition
| intentional, non-consensual, physical contact with another |
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Term
| discuss reasonable and unreasonable sensitivity concerning assault & battery |
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Definition
| technically it’s battery, if you come up to a stranger and tap their shoulder to ask for time. however, a person of “reasonable sensitivity" might not think so. However, someoen fo “unreasonable sensitivity” (i.e a crazy person) it’s battery) |
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Term
| what are the elements of negligent infliction of emotional distress? |
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Definition
| 1) close family relative 2) must be severe emotional distress 3) must have observed the incident |
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Term
| Are doctors protected under the Good Samaritan Law and why or why not? |
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Definition
| yes, because, we, as a society, want to incentivize them to stop. If they are afraid of being sued, they won't stop. However, they are not protected from gross negligence. |
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Term
| what are the elements of negligence? |
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Definition
| 1) duty of care 2) breach of duty of care 3) causation (actual & proximate [foreseeable]) 4) harm |
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Term
| what is an example of duty of care? |
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Definition
| a painting company/ painter have a duty of care to not let a paintbrush fall off of scaffolding & injure someone |
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Term
| what is an example of a breach of duty of care? |
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Definition
| if a painting company/ painter have a duty of care to not let a paintbrush fall off of scaffolding & injure someone, and they do not do what they should to avoid it, they have breached. Often "expert witnesses" are used to determine breach. |
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Term
| describe the forms of causation |
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Definition
| 1) actual (was it the cause?) 2) proximate (was it foreseeable?) |
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Term
| what are elements of intentional infliction of emotional distress? |
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Definition
| 1) conduct must be extreme or outrageous 2) repetitive behavior can be elevated to level of extreme or outrageous |
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Term
| what are elements of intentional infliction of severe emotional distress? |
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Definition
Sometimes called the “tort of outrage,” intentional infliction of emotional distress occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to another party. For example, if a person calls his former employer and falsely says her son was just
arrested for a double homicide after a botched robbery attempt, most courts would find that
behavior outrageous enough to satisfy the first element of the tort.
Before damages are awarded in some jurisdictions, the plaintiff must demonstrate injury
through physical symptoms directly related to the emotional distress. For instance, in the
above example, if the employer fainted upon hearing the news, hitting her head on the table
and cutting it as she passed out, she would have physical symptoms sufficient to justify a
recovery. Other physical symptoms from emotional distress include headaches, a sudden
onset of high blood pressure, hives, chills, inability to sleep, and inability to get out of bed. |
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Term
| what is invasion of privacy? |
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Definition
when a tort is committed against an individual’s right to keep certain things out of public
view even if they are true.
eg, revealing that someone has a horrible disease, even if it's true |
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Term
| what s misappropriation (aka appropriation)? |
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Definition
| using someone’s name or likeness for commercial purposes |
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Term
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Definition
| intentional, unauthorized entry onto property. 1) could be throwing bottle 2) could be subterranean 3) can include air rights |
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Term
| what is trespass to personal property? |
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Definition
| unauthorized taking with intent not to retain it |
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Term
| how is trespass to personal property different than larceny? |
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Definition
| larceny has the intent to retain |
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Term
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Definition
| intentional taking of personal property with intent of not returning it. same as larceny except it’s a tort. text: Conversion occurs when a person permanently removes personal property from the owner’s possession and control. (page 198) |
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Term
| what are 3 types of trespassers? |
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Definition
| 1) trespassers 2) invitees 3) licensees |
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Term
| what is an invitee and what are the landowners' duties to them? |
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Definition
invitee could be a customer.
1) duty to warn of known dangers
2) duty to inspect for all dangers
3) duty to warn for open and obvious |
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Term
| what is a licensee and what are the landowners' duties to them? |
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Definition
| licensee is someone on land temporarily, i.e. plumber, landscaper. 1) duty to warn of known dangers 2) NO duty to warn of open and obvious 3) NO duty to inspect |
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Term
| what are a landowners duties to trespassers? |
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Definition
| no duty to warn of any known dangers. hoever, may not set traps |
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Term
| what are negligence defenses? |
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Definition
| 1) superseding/ intervening event 2) assumption of risk and one of these 3: 4) contributory negligence 5) pure comparative negligence 6) partial comparative negligence |
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Term
| what is an example of a superseding/ intervening event? |
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Definition
| Eg NOT if paint can knocks someone down, then lightning causes telephone pole to fall and kill them, because the lightning caused the death |
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Term
| what are elements of assumption of risk defense? |
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Definition
| 1) understood & voluntarily went forward 2) inherent risks only 3) waivers are a great defense, but must be a) understandable to non-lawyer, and, b) conspicuous, seeable (bold) |
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Term
| what is contributory negligence? |
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Definition
| if P is even 1% at fault, no recovery |
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Term
| what is pure comparative negligence? |
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Definition
| recovery is based on % of fault |
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Term
| what is partial comparative negligence? |
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Definition
If P > 50% at fault => no recovery;
If P < 50% at fault => use comparative negligence |
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Term
| what is strict liability? |
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Definition
| "liability without fault" (text, p 150) |
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Term
| what kinds of activities fall under strict liability? |
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Definition
| 1) abnormally dangerous (i.e., dynamite factory) 2) inherently dangerous, eg wild animals 3) products |
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Term
| on whom is the burden to prove product liability? |
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Definition
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Term
| if product liability is proven, who is liable? |
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Definition
| all entities in the distribution chain |
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Term
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Definition
| text: "behavior that creates an unreasonable risk of harm to others." p 215 |
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Term
| what are elements of manufacturing defect? |
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Definition
| 1) product was defective 2) injured by product (end users and/ or bystanders) 3) product was not altered |
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Term
| what are elements of design defect? |
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Definition
| 1) if design was defective, all products are defective 2) three elements of manufacturing defect + 3) feasible alternative |
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Term
| which entity does the Plaintiff have to sue in the distribution chain? |
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Definition
| any of them and only needs to sue one. that entity can "join" the others in the lawsuit |
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Term
| what is a packaging defect? |
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Definition
| all of the design & manufacturing defects + must be a feasible alternative packaging. Not one that "only the Rembrandt" of criminals could breach. |
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Term
| what are defenses of strict liability? |
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Definition
1) a) superseding event (something happened after the fact) or b) product was altered after the fact
2) misuse of product |
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Term
| what could lower the damages or win a lawsuit in favor of defendants(s) in a misuse of product defense? |
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Definition
| if the misuse is NOT foreseeable. e.g.. that someone would stand on a chair IS foreseeable |
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Term
| what is market share liability? |
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Definition
| a special type of liability in which any manufacturers who can't prove they aren't liable (eg, they didn't produce at the time or they didn't distribute in a certain geographic area) will them be forced to pay damages according to their market share |
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