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Played a role in the creation of the US government
Iroquois Native Americans
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The obligation to decide current cases based on previous rulings
Precedent
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The accumulation of precedent; judge-made law
Common Law
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A law passed by a legislative body
Statute
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A court's power to fashion a remedy, such as an injunction, which the common law does not provide.
Equity
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Court order to stop doing something
Injunction
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The supreme law of the land, adopted in 1788
United States Constitution
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Congress (House of Representatives & Senate)
Presidential Office
Federal Courts
3 branches of government in the US
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1) Establishes the state government
2) Guarantees the rights of state residents
What the State Constitution does
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1) Establishes the 3 branches of government and what laws they can pass and duties they have
2) Ensures that the states retain all power not given to the national government
3) Guarantees basic rights to the American people
3 basic things the US constitution does
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Guarantees the right of free speech, free press and the free exercise of religion
1st Amendment in the US Constitution
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Protects the rights of any person accused of a crime
4th, 5th and 6th Amendments in the Constitution
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Executive (the governor)
Legislature
Court System
Government established by each state
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Two levels of government
Federalism
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Constitutions
Statutes
Common Law
Administrative Law
Other Sources (treaties & executive orders)
Sources of Contemporary Law
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The principle that precedent is binding on later cases; means "let the decision stand"
Stare Decisis
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Created principles of equity
Chancellor in England
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There is no jury in an equity case
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Passes statutes, ratifies treaties and creates administrative agencies
Federal Legislative Branch
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Proposes statutes, signs or vetoes statutes, oversees administrative agencies and issues executive orders
Federal Executive Branch
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Interpret statutes, create limited federal common law and review the constitutionality of statutes and other legal acts
Federal Judicial Branch
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Passes statutes on state law and creates state agencies
State Legislative Branch
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Proposes statutes, signs or vetoes statutes, oversee state agencies and issues executive orders
State Executive Branch
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Creates state common law, interpret statutes and review constitutionality of statutes and other acts
State Judicial Branch
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Concerns behavior so threatening that society outlaws it altogether
Criminal Law
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The government prosecutes the person who violated a criminal law
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Regulates the rights and duties between parties
Civil law
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A person has to file a civil lawsuit
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Defines the rights of people
Substantive Law
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Establishes the processes for settling disputes
Procedural Law
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The rights and obligations of governments as they deal with the nation's citizens
Public Law
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Regulates the duties between individuals
Private Law
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The philosophy of law
Jurisprudence
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Law is what the sovereign says that it is
Legal Positivism
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The recognized political power, whom citizens obey
Sovereign
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The law must have a moral basis; an unjust law is no law at all
Natural Law
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It doesn't matter what is written as law, what counts is who enforces that law and by what process
Legal Realism
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The person who is suing
Plaintiff
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The person being sued
Defendant
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Indicates where to find the case in a law library
Legal citation, underneath the case name
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A lawyer who handles court cases
Litigator
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The process of filing claims in court and ultimately going to trial
Litigation
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Any other formal or informal process used to settle disputes without resorting to a trial
Alternative dispute resolution
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Negotiation, Mediation and Arbitration
Examples of Alternative Dispute Resolution
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A neutral party attempts to coax the two disputing parties toward a voluntary settlement
Mediation
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1) Maintain control of the process and can speak freely
2) Do not need to fear conceding too much because no settlement takes effect until both parties sign
3) All discussions are confidential
Advantages of Mediation
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A 3rd party is brought in and they are able to impose an award
Arbitration
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Determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions
Trial Courts
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A court's power to hear a case
Jurisdiction
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Small Claims division
Juvenile division
Land division
Municipal division
Probate division
Domestic Relations division
Types of Trial Courts with Limited Jurisdiction
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General Civil division
General Criminal division
Types of Trial Courts of General Jurisdiction
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Generally accept the facts given to them by trial courts and review the trial record to see if the court made errors of law
Appeals courts
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Because of this, the appeals court may require a new trial
Error of law
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The party filing the appeal
Appellant
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The party opposing the appeal
Appelle
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Court of Appeals
State Supreme Court
Types of Appellate Courts
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Written arguments on the case
Briefs
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Nullified; to turn the loser into a winner
Reverse
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To allow the decision to stand
Affirm
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Federal Question Case & Diversity Cases
2 kinds of civil lawsuits that are permitted in federal court
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A case in which the claim is based on the United States Constitution, a federal statute or a federal treaty
Federal Question Case
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1) The plaintiff and defendant are citizens of different states and 2) the amount in dispute exceeds $75,000
Diversity Jurisdiction
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Primary trial court in the federal system
US District Courts
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The nation is divided into 94 districts
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Bankruptcy Court
Tax Court
US Court of International Trade
US Claims Court - hears cases brought against the US, typically on contract disputes
Foreign Intelligence Surveillance Court - specialized, secret court, which oversees requests for surveillance warrants against suspected foreign agents
Other Federal Trial Courts
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The president nominates ALL federal court judges and the nominees must be confirmed by the Senate
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Intermediate courts of appeals; divided into 11 circuits
US Courts of Appeals
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Highest court in the country
US Supreme Court
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A petition asking the Supreme Court to hear a case
Writ of certiorari
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The documents that begin a lawsuit - consists of a complaint, the answer and sometimes a reply
Pleadings
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A short, plain statement of the facts alleged and the legal claims made; filed by the plaintiff's attorney
Complaint
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Inform the defendant of the general nature of the claims and the need to come into court and protect his interest
The purpose of a complaint
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A paper ordering the defendant to answer the complaint within 20 days; the plaintiff's lawyer receives after filing a complaint
Summons
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A brief reply to each of the allegations in the complaint; must be filed within 20 days of receipt by the defendant's attorney
Answer
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A decision that the plaintiff wins without a trial because the defendant failed to answer in time
Default judgement
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A second lawsuit by the defendant against the plaintiff
Counter-claim
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An answer to a counter-claim
Reply
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One plaintiff represents the entire group of plaintiffs, including those who are unaware of the lawsuit or even unaware they were harmed
Class action
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A formal request to the court to take some step or issue an order
Motion
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A request that the court terminate a case without permitting it to go further
Motion to Dismiss
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The pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case
Discovery
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Interrogatories
Depositions
Production of Documents & Things
Physical and Mental Examination
E-discovery
Important forms of discovery
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Written questions that the opposing party must answer, in writing, under oath
Interrogatories
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A chance for one party's lawyer to question the other party, or a potential witness, under oath; lawyers for both parties are present
Depositions
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The person being questioned in a deposition
Deponent
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A request that the court limit discovery
Motion for a protective order
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Both parties are entitled to discover anything that could reasonably lead to valid evidence
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A formal quest that the court orders the other party to supply more complete answers to the interrogatories
Motion to compel answers to interrogatories
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A supporting argument; sent with the motion
Memorandum
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A device a judge can use in reaching a discovery ruling; the judge views the requested documents alone, with no lawyers present, and decides whether the other side is entitled to view them
In Camera Inspection
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A ruling by the court that no trial is necessary because some essential facts are not in dispute; occurs after discovery
Summary judgement
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As long as there is some evidence supporting each side of a key factual dispute, the court may not grant summary judgement
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Presumes that by putting a witness on the stand and letting both lawyers "go at" her, the truth will emerge
Adversary system
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Both plaintiff and defendant have a right to demand a jury trial when the lawsuit is one for money damages
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If the plaintiff is seeking a equitable remedy, there is no jury right for either party
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The process of selecting a jury; means "speak the truth"
Voir Dire
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A claim that a juror has demonstrated probable bias; each lawyer can make any number of these
Challenge for cause
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The right to excuse a juror for virtually any reason; a limited number by each lawyer
Peremptory challenge
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The plaintiff has the burden of proof
In civil cases
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The plaintiff's burden in a civil lawsuit
Preponderance of the evidence
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In a civil case, the plaintiff must convince the jury that its version of the facts is at least slightly more likely than the defendant's version. Some courts describe this as a "51-49" persuasion
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The government's burden in a criminal prosecution
Beyond a reasonable doubt
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When a lawyer asks questions of her own witness
Direct examination
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To ask questions of an opposing witness
Cross-examine
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Determines what questions a lawyer may ask and how the questions are to be phrased, what answers the witness may give and what documents may be introduced
Law of evidence
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A ruling that the plaintiff has entirely failed to prove some aspect of her case
Directed verdict
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A directed verdict is permissible only if the evidence so clearly favors the defendant that reasonable minds could not disagree on it
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judgement notwithstanding the jury's verdict
Judgement non obstante veredicto (JNOV)
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To affirm the outcome but with changes
Modify
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To nullify the lower decision and return the case for reconsideration or retrial
Reverse and remand
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A mistake by the trial judge that was too minor to affect the outcome
Harmless error
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A violation of a duty imposed by the civil law
Tort
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Harm caused by deliberate action; the defendant doesn't always intend to cause the harm but the action they followed was intended
Intentional tort
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Injuries caused by neglect and oversight rather than by deliberate conduct
Negligence and strict liability
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False statements that harm someone's reputation
Defamation
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A fact that a plaintiff must prove to win a lawsuit
Element
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Defamatory Statement - statement that is likely to harm another person's reputation
Falseness - the statement must be false to be defamatory
Communicated - the statement must be communicated to at least one person other than the plaintiff
Injury - in slander cases, the plaintiff generally must show injury; in libel cases, the law is willing to assume injury
Elements of a Defamation Case
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Generally a valid defense in a defamation suit because it cannot be proven true or false
Opinion
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Public officials and public figures receive less protection from defamation. They can only win defamation cases by proving actual malice by the defendant.
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The defendant knew the statement was false or acted with reckless disregard of the truth
Actual malice
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A witness testifying in a court or legislature my never be sued for defamation
Absolute privilege
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Exists when two people who have a legitimate need to exchange information
Qualified privilege
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The intentional restraint of another person without reasonable cause and without consent
False imprisonment
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Results from extreme and outrageous conduct that causes serious emotional harm
Intentional infliction of emotional distress
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An intentional touching of another person in a way that is unwanted or offensive
Battery
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Occurs when a defendant does some act that makes a plaintiff fear an imminent battery
Assualt
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Intentionally entering land that belongs to someone else or remaining on the land after being asked to leave
Trespass
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Taking or using someone's personal property without consent
Conversion
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Injuring another person by deliberate deception
Fraud
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Money intended to restore a plaintiff to the position he was in before the injury
Compensatory damages
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Requires a court to settle once and for all, by awarding a lump sum for past and future expenses
Single recovery principle
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Medical expenses
Lost wages
Pain & suffering
How compensatory damages are figured
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Intended to punish the defendant for conduct that is extreme and outrageous
Punitive Damages
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The reprehensibility of the defendant's conduct;
The ratio between the harm suffered and the award; and
The difference between the punitive award and any civil penalties used in similar cases
Guideposts when awarding punitive damages
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Tortious Interference with a Contract
Tortious Interference with a Prospective Advantage
Tortious Interference with Business Relations
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The defendant improperly induced a third party to breach a contract with the plaintiff
Tortious interference with a contract
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1) There was a contract between the plaintiff and a 3rd party;
2) The defendant knew of the contract;
3) The defendant improperly induced the third party to breach the contract or made performance of the contract impossible; and
4) There was injury to the plaintiff
4 Elements for a Tortious Interference with a Contract
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A claim that special circumstances made its conduct fair
Defense of Justification
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1) It was acting to protect economic interest, such as its own contract with the 3rd party;
2) It was acting in the public interest, for example, by reporting to a government agency that a corporation was over billing for government services; or
3) The existing contract could be terminated at will by either party, meaning that although the plaintiff had a contract, the plaintiff had no long-term assurances because the other side could end it at any time
What needs to be shown to establish justification
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Malicious interference with a developing economic relationship
Tortious interference with a prospective advantage
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A plaintiff who has a definite and reasonable expectation of obtaining an economic advantage may sue a corporation that maliciously interferes and prevents the relationship from developing.
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A tort if a reasonable person would find the invasion of her private life offensive
Intrusion
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Prohibits the use of someone's likeness or voice for commercial purposes
Commercial Exploitation
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Provides broad protection against false statements intended to hurt another business
The Lanham Act
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1) Duty of Due Care
2) Breach
3) Factual Cause
4) Foreseeable Harm
5) Injury
5 Elements for a Negligence case
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An act done by someone that is neither intended or expected to hurt anyone, yet someone is harmed
Negligence
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If the defendant could have forseen injury to a particular person, she has a duty to him. If she could not have foreseen the harm, there is usually no duty.
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Does not require a bystander to come to the assistance of a person in danger, assuming that the bystander did not create the danger
Affirmative Duty to Act
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A landowner is only liable to a trespasser for intentional injury or gross misconduct.
Lowest Liability of Landowner's Duty
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If there is some man-made thing on the land that may attract children, the landowner is probably liable for any harm
Occasional Liability - Children
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Anyone on the land for her own purpose but with the owner's permission
Higher Liability - Licensee
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Someone on the property as of right because it is a public place or a business open to the public
Highest Liability - Invitee
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Reasonable "person" means someone of the defendant's occupation
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Failing to behave the way a reasonable person would under similar circumstances
Breach of Duty
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A minimum standard of care for a particular activity is set by a legislature in order to protect a certain group of people and a violation of the statute injuries a member of that group
Negligence Per Se
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A plaintiff that can show negligence per se need not prove breach of duty.
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The defendant's breach physically led to the ultimate harm
Factual Cause
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For the defendant to be liable, the type of harm must have been reasonably foreseeable.
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When one of the "dominoes" in the row is entirely unforeseeable
Superseding Cause
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The facts imply that the defendant's negligence caused the accident; the thing speaks for itself
Res Ipsa Loquitur
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1) The defendant had exclusive control of the thing that caused the harm,
2) The harm normally would not have occurred without negligence,
3) The plaintiff had no role in causing the harm
When Res Ipsa Loquitur applies
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The plaintiff must persuade the court that he has suffered a harm that is genuine, not speculative
Injury
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If the plaintiff is even slightly negligent she recovers nothing
Contributory Negligence
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A plaintiff may generally recover even if she is partially responsible.
Comparative Negligence
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A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured
Assumption of Risk
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A much higher level of liability resulting from ultrahazardous acts or defective products
Strict Liability
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A defendant engaging in an ultrahazardous activity is virtually always liable for any harm that results.
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Using harmful chemicals
Operating explosives
Keeping wild animals
Bringing dangerous substances onto property
Pile driving
Crop dusting
Examples of Ultrahazardous Activity
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