Bus law final study

True or False: A just decision is always a fair decision

False

What is the law?

A set of rules with consequences

Name two functions of the law.

maintain order; protect rights

What is the difference between fairness and justice?

Fairness = treating everyone equally; Justice = doing what is right based on the situation

Law should be consistent but also ___enough to change as our society and values change.

Flexible

What are the three levels of courts? (hint: both state and federal courts have these levels)

Trial Courts; Appellate Courts; Supreme Court

To give a binding ruling, a Court must have two kinds of jurisdiction. What are they?

SMJ and PJ

A federal court can have Subject Matter jurisdiction based on diversity if:

Parties are from different states AND amount exceeds $75,000

Would a federal court have Subject Matter Jurisdiction based on diversity if the following persons are involved? Assume there is $50,000.00 in dispute.

No, because the amount in controversy is less than $75,000

Would a federal court have Subject Matter Jurisdiction based on diversity if the following persons are involved? Assume there is $100,000.00 in dispute.

Yes, if all plaintiffs are from different states than all defendants (complete diversity) and amount exceeds $75,000

When does a federal court have personal jurisdiction over someone (remember the International Shoe v. Washington Case)?

When the defendant has minimum contacts with the state and jurisdiction is fair

You are an attorney. You represent a Georgia based hamburger restaurant who wants to open another restaurant in Colorado. Your client wants to know if doing so would give a Colorado federal court jurisdiction over them. What do you tell your client?

Yes, opening a business creates sufficient minimum contacts

You are an attorney. You represent a Georgia based hat manufacturer. Your client wants to ship its products to New York. Your client wants to know if doing so would give a New York federal court jurisdiction over them. What do you tell your client?

Yes, shipping products creates minimum contacts

Bob was in a car accident. Bob sued the person who hit him, but the trial level court did not give him any damages. Bob is upset. Bob can appeal his case to

Appellate Court

If Bob loses for the second time there, he can appeal his case

Supreme Court

At the state level, do Superior Courts have general jurisdiction or limited jurisdiction?

General jurisdiction

A Plaintiff filesa_ Pleactinie (name of the document) to begin a lawsuit. A Defendant should file an answer in response.

Complaint

What is the purpose of the Discovery process?

To gather evidence

What is mediation?

A process where a neutral third party helps resolve disputes

The Federal Government is a governmentof_

enumerated powers while state gov have broad powers

True of False: You represent the CEO of a timber mill. Your client wants to know if she can refuse to sell standard timber products to Mr. Smith because she does not like doing business with members of Mr. Smith’s race. Can your client refuse to sell standard products to Mr. Smith? Why?

false, violates civil rights laws

The federal government can rely on the Commerce Clause to regulate individual activities if the activity is ____ in nature AND if in the aggregate the activity ____.

economic; substantially affects interstate commerce

You are an attorney. Your neighbor wants to grow radishes in her backyard and sell them to her neighbors… does the federal government have authority… Why or why not?

Yes, because local economic activity can substantially affect interstate commerce

True or False. As of the day of this test, the government can require someone sell an artistic product to a buyer even though the sale violates the seller’s personal religious beliefs.

False

You are an attorney. You represent a local community college. The community college wants to know if they can consider the race of persons applying to the college. What do you tell the college?

Only in limited circumstances under strict scrutiny (must be narrowly tailored to a compelling interest)

The U.S. Supreme Court is the:

court of last resort or the highest court

The strict scrutiny standard requires that a law that discriminates by race:

serve a compelling interest and be narrowly tailored

The appellate level of the Federal Court System:

reviews record (but not new evidence) of lower court

A federal law discriminating against people according to their _____is most likely to pass the equal protection tests.

annual income

Issues involving “Federal Questions” for jurisdictional purposes include:

all of the above

Congress can regulate:

all of the above

A system of government in which the same territory is controlled by two levels of government is known as

Federalism

Congress’s ability to affect commerce that occurs entirely within a state is derived from its power to regulate commerce:

between states

Your professor is convicted of a crime in Georgia, where is venue proper?

In the county where the crime occurred

Your professor breached a contract controlled by Georgia law (a Civil violation), where is venue proper? Assume there is no venue selection clause.

In the county where he resides

The 14th Amendment to the Constitution does NOT establish the:

Freedom of Speech

The statute of limitations provides that:

An injured person only has a certain amount of time to file a lawsuit

Commercial speech is subject what level of protection?

Limited protection

A Defendant is sued but wants to assert a claim against the Plaintiff. What does the Defendant file?

counterclaim

Procedural Due Process requires:

Notice and opportunity to be heard

Which of the following types of speech is fully protected?

Political speech

Litigation is usually:

all of the above

The Free Exercise clause, in the context of religious freedom, means that a government:

cannot unduly burden religious beliefs

Which of the following fundamental rights is not expressly provided for in the Constitution?

the right to marry

Congress can use the Commerce Clause to pass the following laws.

a law which severely fines hotels for refusing customers of certain ethnicities

Why would a company include a venue selection clause in its contract?

to require lawsuits in a favorable state

The following laws would require review under the intermediate scrutiny standard:

A law allowing the government to draft men, but not women

Name the four elements of a negligence/unintentional tort claim

Duty of care, breach, causation, injury/damage

Name the four elements of a valid, enforceable contract

meeting of the minds, capacity, consideration, legal object

T or F: A tort is a criminal wrong that results in injury

False

T or F: for tort based claims, the injury can be to a person, property, or be economic in nature

true

what is implied warranty of merchantability as it relates to the sale of goods

Object must be good for ordinary purpose

T or F: For a negligence claim to be successful most, but not all, of the elements have to be met by plaintiff

True

What does it mean if a contract is implied-in-fact

A contract that is implied in fact when the service was performed and something in return ($) was expected. Ex: babysitting and expecting to be paid after

What does it mean if a contract has an entire agreement (aka merger) clause? Could the parties argue that emails engaged before the contract was signed were part of the contract?

No, the parties generally cannot argue that earlier emails are part of the contract, because the merger clause blocks that.

You are representing a client who discussed every detail of the transaction with Mr. Smith, but never signed the contract. Your client and Smith acted and spoke as if there was already a contract in place. Smith refuses to complete the transaction since there was no transaction in place. What’s your best argument that your client should receive damages on account of Smith’s refusal

There was a meeting of the minds, my client relied on the agreement

You are representing Ms. Jones, Ms. Jones, and Mr. Black met at the Armurchee Wafflehouse at 2am Friday night and discussed a businessed a business deal. At 2:30 am they were drunk and signed a contract

We can say there was no consideration since she was not sound of mind

What is the difference between Assault and Battery

Assault: threat to harm someone
Battery: Actual physical harm

In a products liability context, a court will find that a manufacturer is liable for negligent design if the cost of ___ is less than the cost of damaged multiplied by the prob

design

What does strict liability mean? What is an example of an action that would result in strict liability

When something was completely the person’s fault and could foresee the damage. Ex: If someone was swining arounf a harmful object and hit someone

In a contract law context, what does it mean to have assent or a “meeting of the minds”

There was an offer, then accepted

What is a “specific performance” and when is it available

You must do what you were contracted to do. Only when its unique object

T or F: The duty of a landowner owes to someone injured on the landowner’s property is the same regardless of whether the injured person was invited on the property of was tresspassing

False

When evaluating a negligence case, what test is used to determine if causation is proximate or not

foreseeability

To recover for Intentional Infliction of Emotional Distress the offending action or statement must be _____rather than just simply rude or offensive

unhumane

What is the reasonabe person duty of care and how is it breached

If that person were doing actions intentionally knowing that they would harm

T or F. To win a negligence case, a plantiff must prove BOTH actual proximate cause

true

Explain the concept of unjust enrichment ( also known as the quasi contract)

You can’t benefit at someone else’s expense and keep it for free.

T or F: The remedies available to the nonbreaching party of a contract differ depending if the breaching party committed a substantial (material) breach or a minor breach

True

Rome’s Hospital wants to hire a surgeon to perform risky heart surgeries. As the hospital’s attonery would recommend Rome General Hospital hire the surgeon as an independent contractor or employee

Independent contractor bc the hospital would have less liability risk

In the context of contract law, what is the undue influence

When there is a power imbalance between the 2 parties

In the context of contract law, consideration can be the exchange of:

all of the above

If only one party is mistaken about a material fact of contract, then the mistake is called a…

unilateral mistake

The statue of Frauds applies to which contract

land, services, perishable goods, all of the above

Damages that compensate a non-breaching party for the direct loss resulting from the breach are

compensatory damages

consequential damages include

special damages which are foreseeable

a person unable to enter into an enforceable, non voidable contract due to age or mental limitations is said to lack

capacity

The primary advantage of hiring someone as an employee rather than an independent contractor is that the employer

can control the manner in which the employee performs his or her job

The doctrine of negligence that divides damages among the parties based on their respective percentage of fault is

comparative negligence

Which is a definition of negligence “per se”

violation of law which was meant to protect people from a certain type of harm

The Uniform code article 2 s a unifrom body that covers

sale of goods

In evaluating a negigence claim, a doctor performing a kneww operation would be held to the standard of

an ordinary, prudent person

an unitentional tort is also called

negligence

which would be considered unique object under contract law

farmland in Nebraska

A manufacturer who is found liable for a failure to warn

sold a product that did not provide reasonable warnings about nonobvious dangers

IN premisis liability context, a landowner owes which of the follwoing persons the greatest/highest duty of care

invitees

The general goal of contractual remedies is to

put the harmed party in the position they would have been in if the contract was performed

Fraud can occur by

all of the above

A manufacturer sells a product that contains a manufacturing error, the manufacturer is:

Strictly liable no matter if it was reasonable or not