Bus Law 340 - Exam 1

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  1. Remedy:
    • The means given to a party to enforce a right or to compensate for another’s violation of a right. Compensation in dollars.
    • *American courts still recognize legal remedies and equitable remedies. 
  2. LAW Remedy
    Courts of Law: were empowered only to award wronged parties money or other valuable compensation for their injuries or other losses.
  3. EQUITY remedy
    Courts of Equity, by contrast, were empowered to award any manner of non-monetary relief, such as ordering a person to do something (a.k.a. “specific performance”) or to cease doing something (a.k.a. “injunction”).
  4. In a suit against Clem, Dona obtains the cancellation of a contract. This is an
    A. damages.
    B. rescission.
    C. injunction.
    D. specific performance
    D. specific performance
    (this multiple choice question has been scrambled)
  5. Lewis is a state court judge. Like other judges, Lewis often refers to secondary sources of law for guidance. These sources include
    A. state constitutions.
    B. the U.S. Constitution.
    C. other states' statutes.
    D. official comments to statutes.
    D. official comments to statutes.
    (this multiple choice question has been scrambled)
  6. Why do we have law
    Stability and guidance
    The doctrine obliging judges to follow established precedent within a particular jurisdiction.
  8. Precedent
    A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.
  9. Precedent - Binding Authority
    • Any primary source of law a court must follow when deciding a dispute. This includes all constitutional provisions, statutes, treaties, regulations, or ordinances that govern the issue being decided, as well as prior court decisions that constitute controlling precedent in the court’s jurisdiction.
    • (supreme court decision are the most binding)
  10. Precedent - Persuasive Authority
    Any primary or secondary source of law which a court may, but which the court is not bound to, rely upon for guidance in resolving a dispute. A prior judicial decision acts as binding precedent only when the subsequent court is applying the same law as the prior court; otherwise, the prior decision is only persuasive authority.
  11. Precedent - Departure from Precedent
    • a court decides the precedent is incorrect or that technological or social changes have rendered the law inapplicable, the court may rule contrary to the precedent. Overturned cases receive great publicity.
    • Brown v Board of Edu
  12. State agency regulations take precedence over conflicting federal agency regulations
  13. In Export Co. v. Imports, Inc., there is no precedent on which the court can base a decision. The court can consider
    A. public policy only. public policy or social customs and values.
    B. neither public policy nor social customs and values.
    C. public policy or social customs and values.
    D. social customs and values only.
    C. public policy or social customs and values.
    (this multiple choice question has been scrambled)
  14. Primary sources of law
    • 1. Constitution
    • 2. Federal and State Statues
    • 3. Administrative rules and regulations
    • 4. Common law
  15. Constitution
    constitutions setting forth the fundamental rights of persons living or working in the United States and a particular state, describing and empowering the various branches of government, and prescribing limitations on that power (US constitution(supreme law of land) and constitutions of various states);
  16. federal and state statutes
    (statutory law passed by congress or any level of state) and local ordinances (laws rules or orders passed by municipal or county not covered by state or federal);  A given statute might be based on a uniform law (e.g., the Uniform Commercial Code) or on a model act (e.g., the Model Business Corporations Act). However, each legislature is free to depart from the uniform or model text as it sees fit.
  17. administrative rules and regulations
    promulgated by federal, state, and local regulatory agencies;
  18. Common Law
    which is the body of judicial decisions interpreting and enforcing constitutional, statutory, or administrative law and governing those relationships and transactions that constitutional, statutory, and administrative law do not govern.

    The body of general law developed from custom or judicial decisions in English and US courts, not attributable to a legislature.
  19. Secondary Source of Law
    A publications that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in the law review
  20. Case Law
    The rules of law announced in court decisions. Case law interprets statutes, regulations, constitutional provisions, and other case law. Governs statutory law and administrative law and is part of the common law tradition.
    Federal constitutional and statutory law and treaties supersede their state counterparts due to the Supremacy Clause, Article VI, Section 2 of the U.S. Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
    • 1. Substantive law
    • 2. Procedural law
    • 3. Civil Law
    • 4. Cyber Law
    • 5. National Law
    • 6. International Law
  23. Substantive law
    creates, defines, describes, regulates, restricts, suspends, and sometimes abolishes legal rights and obligations. Ex: works comp laws
  24. Procedural law
    establishes and regulates the methods of enforcing or vindicating substantive legal rights. Ex: est the method in which the employee must notify the employer on workers comp
    • 1. Procedural Due Process
    • 2. Substantive Due Process
    • 3. Fundamental Right
  26. Procedural Due Process
    requires that any government decision to take life, liberty, or property must be made fairly, giving the persons from whom life, liberty, or property is to be taken prior notice and the opportunity to be heard by an impartial decision maker.
  27. Substantive Due Process
    requires that the interest of the state to be served by any law or other governmental action be weighed against the right of the individuals against whom the law or action is directed.
  28. A fundamental right
    (e.g., free speech, interstate travel, privacy) will be protected unless the government can show a compelling state interest (e.g., public safety).  In all other cases, a law or action will not violate substantive due process as long as it is rationally related to any legitimate governmental purpose.
  29. Orin claims that a Pennsylvania state statute infringes on his "substantive due process" rights. This claim focuses on

    a. procedures used to make decisions to take life, liberty, or property.
    b. the content of the statute.
    c. the similarity of the treatment of similarly situated individuals.
    d. the steps to be taken to protect Orin's privacy
    the content of the statute.
  30. TORTS
    A breach of a legal duty that proximately causes another person harm or injury.

    a tort is a civil wrong, punishable by paying damages to the injured party or parties.

    The purpose of tort law is to compensate those who suffer legally recognizable injuries. If no such injury occurs, no tort exists and there is nothing to compensate.
  31. Intentional Tort
    A wrongful act the tortfeasor committed knowingly and with the intent to so act (but not necessarily with the intent to do harm).
  32. Unintentional Tort:
    A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act.
    • 1. assault
    • 2. Battery
    • 3. False Imprisonment
    • 4. Infliction of Emotional Destress
    • 1. Consent
    • 2. Self-Defense
    • 3. Defense or Assistance of Others
    • 4. Defense of Property
  35. Tort of Interference with contracts
    • Interference with Contract: The tort of interference with contract requires proof of the following:
    • (1) a valid contract exists between parties X and Y;
    • (2) a third party, Z, knows that said contract exists; and
    • (3) Z intentionally causes X or Y to breach the contract.
  36. Property Torts
    • 1. Trespass to Personal Property
    • 2. Conversion
    • 3. Disparagement of Quality
    • 4. Disparagement of Title
    • Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances.
    • 1. requires no intent
    • 2. does not require to know or believe the consequences that his act or omission may cause
    • 3. act on omission and create a risk of circumstances
  38. NEGLIGENCE: Actionable negligence requires that
    • (1) the tortfeasor owed the plaintiff a duty of care,
    • (2) which the tortfeasor breached,
    • (3) actually causing the plaintiff
    • (4) a legally recognizable injury
    • Duty of Care: The duty of all persons to exercise reasonable care in their dealings with others.
    • Reasonable Care: The degree of care expected of a hypothetical “reasonable person”; not necessarily how a reasonable person would act, rather how a reasonable person should act. 
  40. NEGLIGENCE: A reasonable person will be, at minimum:
    • (1) attentive,
    • (2) aware of his or her environs,
    • (3) careful,
    • (4) conscientious,
    • (5) even tempered, and
    • (6) honest.
    • 1. Causation in Fact
    • 2. Proximate Cause
    • 3. Res Ipsa Loquitur
    • 4. Superseding Cause
  42. Negligence: Causation in Fact
    An act or omission without which the plaintiff’s injury would not have occurred.
  43. Negligence: Proximate Cause:
    Exists when the connection between an act and an injury is direct enough to impose liability. A common and critical element of proximate cause is foreseeability – if the consequence of the act or omission or the victim who is harmed by the act or omission is unforeseeable, no proximate cause exists.
  44. Negligence: Res Ipsa Loquitur:
    court may infer that negligence caused an injury or loss if the event resulting in the injury or loss would not occur in the absence of negligence.
  45. Negligence: Superseding Cause:
    The connection between the wrongful act or omission and the injury suffered may be broken by the occurrence of another act or omission, not caused by the alleged tortfeasor nor subject to the alleged tortfeasor’s control, which supersedes the original wrongful act or omission as the cause of plaintiff’s injury or loss.
    A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor
    An act or omission in violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to another party.
  48. NEGLIGENCE PER SE Plantiff must prove:
    • (1) the statute or ordinance clearly sets out what standard of conduct is expected, when it is expected, and of whom it is expected,
    • (2) the plaintiff is in the class of persons intended to be protected by the statute or ordinance, and
    • (3) the statute or ordinance was intended to prevent the type of injury that the plaintiff suffered as a result of the defendant’s wrongful act.
  49. A rule in Tort law that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely; used in the majority of states.
    Comparative Negligence
  50. The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others.  Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence.
    Duty of CareReasonable Person Standard
  51. A civil wrong; a breach of a legal duty that causes harm or injury to another.
  52. Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.
    Proximate Cause
  53. Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.
    Punitive Damages
  54. The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
  55. A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence.  Literally, a Latin term meaning "the facts speak for themselves."
    Res Ipsa Loquitur
  56. An act or omission without which an event would not have occurred.
    Causation in Fact
  57. A wrongful act knowingly committed.
    Intentional Tort
  58. Under the theory of negligence, the duty of care requires one person to come to the aid of another in "peril."TrueFalse
  59. CRIMINAL LIABILITY - burden of proof
    Because criminal liability carries harsher penalties than civil liability, and because the State has more resources at its disposal in prosecuting a crime than the typical criminal defendant has at her disposal, the State must prove the accused’s guilt beyond a reasonable doubt.  By contrast, a civil plaintiff suing the same defendant need only prove the defendant’s civil liability by a preponderance of the evidence (meaning only that it is more likely than not that the defendant’s acts or omissions caused the civil wrong).
  60. Civil Burden of Proof
    a civil plaintiff suing the same defendant need only prove the defendant’s civil liability by a preponderance of the evidence (meaning only that it is more likely than not that the defendant’s acts or omissions caused the civil wrong).
    The authority of a court to hear and decide a specific action. Jurisdiction has many dimensions, including:

    • 1. Personal jurisdiction
    • 2. Subject matter jurisdiction
    • 3. Original Jurisdiction
    • 4. Appellate Jurisdiction
  62. Personal Jurisdiction
    The authority of a court to hear and decide a dispute involving the particular parties before it.
  63. Subject Matter Jurisdiction
    The authority of a court to hear and decide the particular dispute before it. 

    • Limited vs. General Jurisdiction
    • Concurrent Jurisdiction
    • Exclusive Jurisdiction (one court)
  64. Original Jurisdiction
    The authority of a court to hear and decide a dispute in the first instance. Generally speaking, trial courts are courts of original jurisdiction, although the Supreme Court of the United States and the highest courts of many of the states have original jurisdiction over a few types of disputes.
  65. Appellate Jurisdiction
    The authority of a court to review a prior decision in the same case made by another court.
  66. Personal Jurisdiction: In Personam
    In Personam Jurisdiction: Courts have jurisdiction over persons or entities residing or doing business within a particular county, district, state, or in some cases, anywhere within the United States.
  67. Personal Jurisdiction: In Rem Jurisdiction
    Courts also have personal jurisdiction over disputed property located within the county, district, or state.
    • Federal Question Jurisdiction: US Constitution
    • Diversity Jurisdiction: 75000 or citizens of different states
  69. Sufficient Minimum Contacts
    The key to whether a nonresident will be subject to a court’s jurisdiction is the quantity and nature of the nonresident’s contacts with the state within which the court sits.
  70. Slander
    Unprotected speech: Government may prohibit certain types of speech, for example: speech (i.e., slander) or writing (i.e., libel) that defames or harms the good reputation of another person,  threatening or “fighting” words, and  obscene or pornographic speech.
    Commerce Clause: Article I, Section 8 of the U.S. Constitution empowers Congress “[t]o regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.” Since 1824, the Supreme Court has interpreted the Commerce Clause to permit Congress to regulate both interstate commerce (i.e., commerce between two or more states) and intrastate commerce (i.e., commerce within a single state),as long as the intrastate commerce at issue “substantially affects” interstate commerce.
    • Police Powers
    • The "Dormant" Commerce Clause:When state regulations impinge on interstate commerce, courts must balance the state’s interest in the merits and purposes of the regulation against the burden that the regulation places on interstate commerce. Generally speaking, state laws enacted pursuant to the state’s police powers are presumed to be valid notwithstanding their effect on interstate commerce; however, if the state law substantially interferes with interstate commerce, it will most likely be held to violate the Commerce Clause (i.e., to be unconstitutional).
  73. The federal government cannot regulate commerce within a state, regardless of the effect of the commerce on other states. TF
  74. Act and Intent
    • Liable for some
    • Tort: motive, negligence cause harm to someone
  75. Difference between civil tort and criminal law
    • Civil: person to person; equitable remedies; negligence-statutory; breach of contract; monetary damages; preponderance of Evidence (over 50%)
    • Criminal: person to society; law remedies; Beyond reasonable doubt; over 1 year felony; reasonable prudent persona may hesitate - no conviction; Act -actus reas, intent mens reas (malis of forethought, guilty mind)
  76. Exclusionary Rule
    • If you violate the 4th amendment rule, exclude said evidence
    • Pre-trial motion to exclude
    •            Power of exclusionary rule: fruits of tree doctrine:
    • Miranda rights
    • Inevitably would have found it anyway- on road to finding it.
  77. Probable cause
    reasonable facts of the crime. Trustworthy facts or knowledgable
  78. 4th amendment
    free from unreasonable search and seizure w/o probable cause. need warrant.
  79. Palsgraf v Long Island Railroad Co
    This concept of foreseeability in tort law tends to limit liability to the consequences of an act that could reasonably be foreseen rather than every single consequence that follows. (Butterfly Effect).
  80. Questions of Proximate cause
    Legal cause, forseeable
  81. State legislatures sometimes come together to draft “uniform acts” to promote uniformity on certain subjects.
  82. In rem jurisdiction is based on the fact that property of the defendant is located within the state.
  83. Which of the following motions is made at trial and, if successful, essentially “takes thecase away from the jury” and gives a judgment to one party?
    A) The motion for summary judgment
    B) The motion for a new trial
    C) The motion for a directed verdict
    D) The motion to dismiss
    C) The motion for a directed verdict
    (this multiple choice question has been scrambled)
  84. Although it is a criminal statute, the RICO statute also allows civil actions in which private plaintiffs may recover treble damages.

    Although it is a criminal statute, the RICO statute also allows civil actions in which private plaintiffs may recover treble damages.
  85. The warnings required by the Supreme Court in the Miranda decision were designed to further Fourth and Eighth Amendment protections.
  86. Proximate causation presupposes the existence of actual or but- for causation; you can't have the former without the latter.
  87. Negligence defendants are never liable for the consequences of an unforeseeable intervening cause.
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Bus Law 340 - Exam 1
Bus Law 340 - Exam 1
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