Law 3220 Exam 3

Eminent domain (general def)

federal government and states can take private property for public use

5th Amendment and eminent domain

private property can’t be taken without “just compensation” (supposed to be market value, usually an argument/negotiation)

Common eminent domain scenario

“We can do this the easy way (sell to us) or the hard way (we’re going to take it and you’ll get the amount of money that the judge decides)”; owner usually sells; if there are fights, it’s usually about the money, not whether the government has the power

What is “public use” in regards to eminent domain?

usually clear - new government building, park, school, etc.; not as clear when a private party benefits from the taking (i.e Kelo case where SCOTUS upheld a city taking property for Pfizer to build a research complex)

Regulatory taking

when the government doesn’t seize the property but still affects its value; often involves zoning; very high bar for citizens to clear (reduction in value must be total or almost total)

Crimes in general

act or omission that is an offense against a local, state, or federal government; crimes against people/property are still “against the government”; only the government can bring criminal charges (someone can’t “press charges” without the government → prosecutors retain decision-making power of whether or not to prosecute) (private rights are enforced by civil suits)

Misdemeanor vs felony

misdemeanor: punishment of a year or less

felony: punishment of a year or more

Basic elements of a crime

the government must prove (1) the defendant committed the illegal act (actus reus = “the guilty act”), and (2) if required, that the defendant possessed criminal intent (mens rea = “the guilty mind”)

Types of mens rea

“knowing” or “knowledge” requirement; “negligence” requirement (criminal negligence = a degree of carelessness amounting to a guilty disregard of rights and safety of others)

“Strict liability” crimes

government only has to prove AR, not MR; i.e speeding (AR = going too fast; don’t need to prove MR (intent))

Government’s burden of proof

government must prove all elements of a crime “beyond a reasonable doubt” (AR + MR)

“Prosecutorial discretion”

the government has broad authority to decide whether or not to bring a case; safeguard against unfairness; government could…bring charges, elect not to bring charges, drop charges if defendant does something (i.e goes to therapy)

Double jeapordy

5A protects a defendant from being tried a second time for the same charges; BUT, “dual sovereignty doctrine” = double jeopardy doesn’t extend from the federal government to states and vice versa (or between states) (i.e can be tried for the same crime in SC and TN)

What happens when businesses break criminal law?

entities can’t go to jail, but… large fines/restitution payments, restrictions on doing business, total bans on doing business in a state; and… damaged reputation, low morale, shy lenders

White collar crime and 5 types (don’t need to explain)

a nonviolent crime characterized by deceit to obtain or avoid losing money, or to gain a personal or business advantage; bribery, embezzlement, insider trading, insurance fraud, money laundering

Bribery

white collar crime; taking money, goods, or services to influence official actions or decisions; i.e paying someone to overlook something illegal (quid pro quo); illegal kickback and anti-kickback laws; key factor in bribe cases = look to statute to see who it covers

Illegal kickback and anti-kickback laws regarding bribery

payment made to someone in exchange for preferential treatment or services (i.e company paying councilman 10% of profits if councilman votes to award their construction company a project); many industries have anti-kickback laws (especially healthcare)

Embezzlement (and 4 types)

white collar crime; misappropriation of assets entrusted to someone
types: straight-up stealing assets; siphoning/skimming (embezzler taking a cut of a payment); payment/overtime embezzlement (i.e creating a fake position and giving that salary to yourself); Ponzi Schemes (schemer comes up with fake investment/opportunity)

What is a Ponzi Scheme and how can you spot one (7)?

type of embezzlement; schemer comes up with fake investment/opportunity

spot one: guaranteed promise of high return with little risk, consistent flow of returns regardless of market conditions, investments not registered with the SEC, sellers not licensed to sell investment products, investment strategies that are secret or “too complex” to explain, failure to provide clients with documentation for their investment, difficulty withdrawing money

Insider trading

white collar crime; when a person trades a security (like a stock) while in possession of material nonpublic information (having insider advantage information)

Insurance fraud

white collar crime; false or intentional claims; i.e burning down a warehouse for insurance money

Money laundering

white collar crime; dirty cash (obtained illegally) → clean the cash (make dirty money appear as if it came from a legitimate source) (could be through fake business) → use the clean cash to make legitimate purchases (i.e invest, purchase hard assets)

What is a tort?

a wrong that is not a breach of contract and not a crime, AND for which the law provides a civil remedy; alt def = a breach of a legal duty owed to another that causes harm

Goal of tort law

put the plaintiff back in the position they were in before the tort

2 main types of tort (don’t need to explain)

accidental and intentional

Tort of negligence and 4 elements (don’t need to explain)

unintentional acts OR omissions that cause harm; duty, breach, causation, damages

Duty (element of negligence)

“blanket” duty: all of us always owe each other a duty to use reasonable care so as not to injure others

specialized duties:

• professionals can owe higher duties when acting within the scope of their profession (i.e reasonable doctor)

• common carriers (hotels, airlines, ferries, trains): higher than reasonable care (utmost care is owed to passengers)

duty to rescue: only if there is a “special relationship” (i.e parents/children, spouses, lifeguards, etc.); if you begin to rescue, you can’t intentionally leave them worse than you found them; good Samaritan laws protect people who try to help even when they have no obligation

Breach (element of negligence)

Did the defendant’s action or omission breach their duty? → generally, did they meet the “reasonable person” or “reasonable professional” standard?

Causation (element of negligence)

the defendant’s action or inaction must CAUSE the plaintiff’s harm; we need both cause-in-fact and proximate cause

Cause-in-fact (causation)

“but for” rule → injury would not have occurred BUT FOR the defendant’s action/inaction; did the defendant’s action begin the chain of events?; cause-in-fact alone is unfair and insufficient (but we still need it to move on to proximate cause)

Proximate cause (causation)

we need “but for” cause + proximate cause; it must be reasonably foreseeable that the action would result in the harm; i.e Palsgraf case

Superseding causes (proximate cause)

if an unforeseeable event breaks the chain of causation connecting the defendant’s breach of duty and the plaintiff’s harm, we have a superseding cause = no liability; often the defendant’s saving grace

Danger-Invites-Rescue Clause

if a harm is foreseeable, then it’s also foreseeable that the person harmed may need rescue → the wrongdoer is responsible for injuries to the rescuer

Damages (element of negligence)

often the easiest to prove but still need to prove it; was the plaintiff actually harmed? (medical bills resulting from injury, pain and suffering, lost wages, emotional distress); completes the elements of negligence (duty → breach → causation → damages)

Burden of proof in tort cases

In civil trials, the burden of proof is “preponderance of the evidence” → in tort cases, the plaintiff must prove all 4 elements (duty, breach, causation, damages) “more likely than not”; the defendant just has to show that one element cannot be proved by a preponderance; shifting the burden of proof = res ipsa loquitur

Res ipsa loquitur

in certain cases, negligence is so obvious that we shift the burden of proof (plaintiff no longer has to prove negligence → instead, defendant must prove non-negligence); means “the thing speaks for itself”; i.e medical malpractice (surgeon leaves sponge in patient)

(1) type of event that doesn’t typically occur without negligence

(2) defendant was in control of the situation

Common defenses against a negligence claim (4)

attack the 4 elements, assumption of risk, contributory negligence, comparative negligence

Defense: attack the elements

plaintiff must prove each of the 4 elements by a preponderance of the elements, defense just needs to poke a hole in one these required elements

duty

breach: defendant can contend they acted reasonably

causation: attack proximate cause - was the harm reasonably foreseeable?

damages: has the plaintiff exaggerated its damages?

Defense: assumption of risk

elements of AoR - the plaintiff must:

1. know of the specific danger (NOT a “reasonableness” standard – look to the actual plaintiff and what they know)

2. understand the danger (NOT a “reasonableness” standard – look to the actual plaintiff and what they know)

3. voluntarily expose themselves to the danger

4. the danger must proximately cause the damage

AoR and liability waivers

case-by-case basis; treated differently by different states (SC is very pro-waiver - generally binding); in most situations, a liability waiver is more likely to be upheld if… prominently displayed (not boilerplate/fine print), large print/bold/underlined, specific language regarding what rights the signer is giving up, the incident that occurs is foreseeable when signing the waiver

Defense of contributory negligence

old English rule; if plaintiff is at fault AT ALL = bar to recovery (can’t recover even if they’re only at fault 1%); very harsh against plaintiff; used by AL, MD, NC, VA, D.C.

(Partial) defense of pure comparative negligence

used in ~10 states; degree of plaintiff’s fault reduces recovery (i.e if you’re 60% at fault (and defendant is 40% at fault), you can recover 40% of damages)

Defense of modified comparative negligence

used in remainder of states (including SC and TN); plaintiff can recover so long as they’re less than 51% at fault (recovery is still reduced by % at fault)

Intentional torts and “intent”

negligence is unintentional, but some torts require intent → “intentional torts”; for intent, we are looking for voluntariness of the act, not the effects

Tort of battery

intent to touch (or intent to cause a touching) + touching

Tort of assault

intentional conduct + directed at a person + the directed, intentional conduct places the victim in fear of immediate bodily harm or offensive contact

Tort of trespass to land

intentionally entering or remaining on + the land of another; looking for a voluntary act, not whether the trespasser knows they are trespassing

Defense to intentional torts: consent

Did the injured party give permission? i.e hockey players know fights are part of the game (gave permission)

Defense to intentional torts: privilege

immunity from liability because the defendant was furthering a social interest when they committed the tort; i.e shoving someone to get to a bomb to defuse it

Defense to intentional torts: self-defense

right to reasonably protect yourself, others, or property; when protecting yourself or others, lethal force is allowed when lethal force is threatened, and non-lethal force must be met with non-lethal force; lethal force can never be used to protect property

Tort of false imprisonment

intentional confinement (no escape) of a person + against that person’s will + unreasonable under the circumstances

Defense to false imprisonment: merchant’s privilege

a business owner or employee + reasonably believe that a person has stolen or is attempting to steal merchandise + reasonably confines the person for a reasonable amount of time until the matter is resolved

Tort of defamation (2 categories and elements)

2 categories:

spoken communication = tort of slander

written communication = tort of libel

elements:

making a false statement about a person to a third person (publication) (truth is total defense) + which causes harm to the person about whom the statement was made

Tort of fraud

defendant has intent to deceive + defendant makes a false material statement + victim justifiably relies on the false material statement + the justifiable reliance causes damages

Civil asset forfeiture

law enforcement officers can take assets from people who are suspected of involvement with crime or illegal activity; the owner never has to be charged with a crime