BUS 207 exam 1

Legislative Branch

Legislative Branch

Power to make laws to the Congress

Example: power to tax, power to regulate interstate commerce

called the “enumerated powers”

1st power given is the Power to Tax and Spend

Executive

Faithfully execute the laws to the President

Given to the Executive Branch (led by the President)

Judicial Branch

Interpret the laws to the Judiciary

shall be vested in one supreme court and in such inferior courts as the congress

extend to all Cases, in Law and Equity arising under this Constitution .

Administrative Agencies

Doesnt require Congressional approval bc direction is issued under a delegation of authority by Congress to the President

What should issued in accordance with in Administrative agencies?

• a clause in the Constitution granting the President specific power

• by a delegation of power by Congress to the President in a law passed by congress

Federalism

federal government is reserved to the States putting most of the power to regulate us in the hands of State and local government

States as Laboratories

Principle of Federalism in our constitutional structure promotes innovation by allowing individual states to try new policies without posing any risk to other States or rest of the country

What if the new policies is successful?

the policy may be adopted across other states and even by the federal government

example: allowing the same sex marriage (CA), now legal under federal law

• restricting use of bathrooms by transgender citizens (North Caroline), later repealed after public backlash, Governor voted out of office

Representative Democracy How the American legal system’s design protects against mob rule?

Premised on the theory that people have unalienable rights that cannot be voted away by a majority of voters

American’s choose elected officials to make decisions about what laws should be enacted rather than vote on the laws directly ourselves

Why the founders built three unique features in our legal system?

A “code” system of laws that is combined with a “common law” system, allows for laws to evolve through judicial interpretation

Separation of Power between three branches of government: Legislative, Executive and Judicial Branches

Diffusion power between States and Federal Governmnet, a constitutional principle knows as Federalism

Primary Sources of American Law

Constitutions (state and federal) - highest source of law in US

Statutes (state and federal codes)

Cases (judicial decisions or common law)

US has a common law system of laws

England has cases resolved similar disputes

Legal principles formed the “common law”

Stare Decisis

Decision stands: lower court judges will follow the decision of higher courts that apply to the issue before them

Statues

subject to judicial interpretation

Congress and State legislatures enact laws that codify the common law

Common law codes are not viewed as the entire statement of the laws but one component of law such as statutes, court decisions, administrative regulation

California Code

29 CA codes

Cover a wide range of subjects

Ordinances

Country laws enacted by the Country Board of Supervisors

City laws enacted by the City Council

State Courts

Trail Courts (Superior ct)

Courts of Appeal

State Supreme Court

Federal Courts ( must involve federal questions and diversity of citizenship over $75,000)

Trail Courts (94 District CT)

Courts of Appeal (11 Circuit court/ DC circuit)

US supreme courts

Plaintiff

files the case

Defendant

the party against whom the case is filed

Pleadings

documents filed with courts

complaint states the claims asserted.

Answer state the defenses

Depositions

a chance to ask questions before trail that must be answered under oath

Interrogatories

written questions that must be answered in writing under oath

Request for Documents/Subpoenas

a way to find out what records the other side has

Legal remeides

money damgaes

Equitable remedies

remedies other than money

injunction or injunctive relief is a court order that stops or enjoins some action or threatened action

Specific performance

a court order compelling some action

Declaratory relief

a court order determining who is correct on a legal issue

Compensatory Damages

intended to compensate the plaintiff for a loss or injury

Punitive Damages

to send a message and punish the defendant

Preliminary injunctions

ordered by courts there is potential harm that might arise pending a trail

must show

• likelihood of success on the merits

• irreparable harm that cannot be fixed by a later award of money damages

What kind of complaints did the plaintiffs filed against MCDonald?

A tort claim

Interrogatories

written questions a party must answer in writing and sign under oath

Requests for production of documents

lists of documents a party has a state in writing exist and then produce

requests for admissions

Statements a party must either admit or deny

example: admit you never warned customers that the coffee could cause third degree burns

What happened if the witness lied under oath?

They say something different in court, the deposition testimoney can be used to “impeach” the witness meaning show the jury they have contradicted themselves and argue that the witness is not credible

What is a tort?

when someone violates another’s rights in some way other than under a contract

Business Tort

Involves the rights of a business

For Negligence, a plaintiff must prove

• defendant had a legal duty to use reasonable care

• defendant breached that duty

• breach of the duty was the proximate cause of the plaintiff’s injury

Standard of Care

based on the care that a reasonable person would use in a given situation

consider things like:

• what did the person know about the situation?

• how much experience did the person have with situation

• how did the person view the situation and was that reasonable

Proximate cause

legal cause of the injury an act that has a strong enough connection to the injury to justify holding the actor legally responsible for the injury

must prove two things:

• cause in fact

• foreseeability

Gross negligence

lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others

A person can be grossly negligent by acting or by failing to act

What is Intentional tort

when the person committing the act (know as the Tortfeasor) intended to act or reasonably should have know that his or her action would interfere with another’s rights

assault

intentional unexcused act that creates reasonable fear in another person of immediate harm or offensive contact

battery

when someone intentionally causes a harmful or offensive physical contact

Defamation

saying something that is untrue about another that could reasonably damge the person’s reputation

If written in defamation

libel

If spoken in defamation

slander

What are the elements of a claim of defamation

did she say something about Johnny depp?

Did she say something untrue

did she say something that could reasonably damage Johnny depp’s reputation?

Invasion of Privacy

intrusion into a person’s affairs or seclusion in an area where the person has a reasonable expectation of privacy

• ex: cameras in a bathroom

• in CA no one can be recorded without their consent unless in a public setting where there would not be an expectation of privacy

Actions intentionally

taken to disrupt an actual contractual relationship between two other parties

Trespass

intentionally entering the premises of another without permission

Conversion

intentionally taking personal property belonging to someone else

Fraud

deceiving someone intentionally for personal gain

Scienter

means to “to know”

the defendant had acted with an “intent to deceive” the plaintiff

the elements to prove Fraud under the common law

defendant made a representation of fact

fact was false

defendant knew it was false (without whether it was true or false)

defendant intended to induce the plaintiff to act in reliance on that false fact

plaintiff did act in reliance on the false fact and was damaged

Why do we have tort law?

to provide relief to injured parties for harms caused by others

impose liability on parties responsible for the harm

try to deter others from doing things that harm others

Tortfeasor

actor of the wrongs

the one who is accused of causing harm in a civil lawsuit

in the lawsuit, the tortfeasor is the denfendant

What is the job of a judge?

Judge decides issues of law

decides questions of fact- what happen

issues to be decided are framed by the allegations and claims asserted in the complaint filed by the plaintiff

What the plaintiff must show for negligence of non emplyoyee

a condition on the property created an unreasonable risk of harm

owner knew or through the exercise of reasonable care, should have know about the risk

owner failed to repair it, failed protect against the harm caused by it or failed to give an adequate warning of it

Negligence of Non employee

premises liability

• owner of property is responsible for injuries people suffer on their property

examples: intentional

assault and battery

defamation

invasion of privacy

fraudulent misrepresentation

intentional interference witha contract

trespass

conversion

unintentional

when the person committing the act did not intend to cause injury, but failed to act in a way that meets a reasonable standard of care and causes a foreseeable injury

unintentional examples

Negligence (e.g. car accident, slip and fal, dog bite)

Negligent Invasion of Privacy

Negligent Misrepresentation

Negligent Interference with a contract

negligent hiring and supervision of employee

premises liability

To prove negligence a plaintiff must prove

defendant had a legal duty to use reasonable care

defendant breached that duty

breach of that duty was the proximate cause of the plaintiff’s injury

Analysis of a Negligence cause of action

Step 1: who owned who a duty to use reasonable care

step 2: apply the reasonable person standard

step 3: was anyone’s breach of their duty to use reasonable care the proximate cause of the other person’s injury?

Can a business be liable for negligence of its employees?

not limited to what is in their job description

includes what the employee will likely do, even if not in their job description

Negligent Supervison/retention/ hiring

need to meet the same requirements and prove

• defendant had a legal duty to use reasonable care in its hiring, supervision and retention of a n employee

• defendant breached that duty

• breach of the duty was the proximate cause of the plaintiff’s injury

Negligent Supervision

had knowledge of the employee’s propensity to do bad things

the employer will be liable if the poor supervision was a substantial cause of the harm the employee ends up doing