FIN 3054 (Showalter Exam 1)

The trier of fact can be the:

Judge or jury

Common law is retrospective. T/F

T

Stare decisis means:

Let decision stand

adjudicate

hold a hearing

Freedom of Information Act(FOIA)

allows anyone to request info from an agency

Substantial Effect/Commerce Rule

Congress may regulate any activity which has a substantial economic effect on interstate commerce

Supremacy Clause

Federal law is more powerful than state and local

Government can limit free speech in:

Time, place, and manner

Alternative Dispute Resolution (ADR)

any process for settling disputes without going to trial

mediation

neutral party to help reach voluntary decision; not binding

arbitration

renders binding decision

personal jurisdiction

must have minimum contacts

criteria for Diversity of Citizenship

must be in two separate states

amount must be greater than 75K

Circuit court is the only court that has a jury. T/F

T

Summons

notification for being sued

Subpeana

mandatory attendance

interragatories

written ?s other parties must answer

depositions

interview under oath by opposing lawyer

legal positivism

law is what the soveriegn says it is; decisions stand, regardless of morale

natural law

an unjust law is no law at all; laws must have good moral basis

legal realism

enforcement of law is more important than law itself

In criminal law, guilt is [blank], while in civil law guilt is [blank].

determined; not determined

common law is [blank] law.

judge-made

statutory law

law passed by congress, can be enacted at all levels

Marbury v Madison established:

Judicial Review

5th Amendment

Due Process and Takings Clause

14th Amendment

Equal Protection

What are the advantages of an ADR v. Litigation?

cheaper, faster, keeps communication going

What case established minimal contacts?

International Shoe v Washington

Which courts make up the appellate court?

Supreme Court

Court of Appeals

Circuit Courts

Once a law has been applied, its interpretation becomes a [blank].

precedent

minimal scrutiny

economic and social relations, gov't actions that classify people/corps based on these are almost always upheld

intermediate scrutiny

gender; gov't classification are sometimes upheld

strict scrutiny

race, ethnicity; classifications based on these are almost never upheld

[blank] is binding, while [blank] is non-binding.

arbitration, mediation

The burden of proof in a civil trial is to prove a case [blank]. The burden of proof rests with the [blank].

a. beyond a reasonable doubt; plaintiff.

b. by a preponderance of the evidence; plaintiff.

c. beyond a reasonable doubt; defendant.

d. by a preponderance of the evidence; defendant.

B

Glen lives in Illinois. He applies for a job with a Missouri company, and he is told, amazingly, that the job is open only to white applicants. He will now sue the Missouri company under the Civil Rights Act, a federal statute. Can Glen sue in federal court?

a. Yes, absolutely.

b. Yes, but only if he seeks damages of at least $75,000.

Otherwise, he must sue in a state court.

c. Yes, but only if the Missouri company agrees.

Otherwise, he must sue in a state court.

d. No, absolutely not. He must sue in a state court.

A

A default judgment can be entered if which of the following is true?

a. A plaintiff presents her evidence at trial and clearly

fails to meet her burden of proof.

b. A defendant loses a lawsuit and does not pay a

judgment within 180 days.

c. A defendant fails to file an answer to a plaintiff's

complaint within a certain time period.

d. A citizen fails to obey an order to appear for jury

duty.

C

What are the steps to litigation?

1. complaint

2. answer

3. reply, if counter-claim

4. discovery

5. trial

6. possible appeal

What is a tort?

a violation of a duty imposed by civil law

criminal law

behavior defined as dangerous to society, prosecuted whether victim wants to pursue or not

contract law

based on a breach of agreement between two parties

tort law

based on an obligation imposed by the law with no agreement needed between parties

intentional tort

intentional to perform act but not necessarily to injure (throwing an object but hitting someone)

The only non-intentional tort is:

negligence

Elements of battery

touching of another person, unwanted/offensive

assault

action that causes victim to fear battery (pulling of a gun)

Elements of false imprisonment

Restraint of someone

Against their will

Without reasonable cause

conversion

taking of someones property without consent

written defamation is called:

libel

verbal defamation is called:

slander

Interference with a contract means that a contract [blank] Interference with a Business Relations means that a contract [blank].

exists; doesn't

disparagement

business related defamation

intrusion

prying into someone's life offensively

What are the elements of commercial exploitation?

person's image or voice used commercially without permission

What are the defenses for assault and battery?

Permission

Self defense

What are the defenses for conversion?

Permission

Ownership

defense(s) for trespass

Necessity, but still liable for damages

defense(s) for nuisance

moving to the nuisance

defense(s) for defamation

truth

privilege

defense(s) for false imprisonment

knowledge

compensatory damages

payment for injury

punitive damages

damages intended to punish defendant (make example out of)

Bobby says, falsely, that Judge Showalter is stealing from their employer, M&M's. The statement is defamatory only if

A. Judge Showalter suffers emotional distress

B. The statement is made in an annoying manner

C. The statement is published in the media

D. A third party hears it.

D

Judge Showalter is an employee with M&M's. He loves those delicious, chocolatey treats. He helps himself to many, many boxes of those confections. He does so without permission from M&M's. Judge Showalter is liable for:

A. Appropriation

B. Conversion

C. Disparagement of property

D. Wrongful interference with a business relationship

B

Refer back to the previous question. If Simone decides to sue, she _______________have to show evidence that she suffered an injury. If she ultimately wins her case, a jury_____________have the option to award punitive damages.

A. will; will

B. will; will not

C. will not; will

D. will not; will not

C

Negligence is a(n) [blank].

accident

5 Things to Prove negligence

Duty of due care - must be duty owed

Breach - must be breached

Factual cause - injury caused by defendant

Proximate cause (foreseeable)

Damages - plaintiff must be hurt

licensee

social guest or someone doing work on property; musth ave actual knowledge of hidden dangers

invitee

someone who has a right to on the public property; owner has duty of reasonable care; liable even if didnt know of danger

breach of duty

failure to behave like a reasonable person

negligence per se

when a defendant violates a statute to prevent a certain type of harm from occurring to a group the plaintiff belongs

factual cause

if the defendant's breach let to injury, they are liable

Res Ipsa Loquitur

When there is presumed negligence, but w/o showing how; no other way could have occurred without party being negligent

contributory negligence

if the plaintiff is at all negligent, he cannot recover damages

comparative negligence

if plaintiff is negligent, percentage is applied to both sides, and can recover percent of damages

assumption of risk

person voluntarily enters risky situation

Strict liability (of products) may be imposed if:

product reaches the user w/o substantial change

defective condition is unreasonably dangerous to user

seller is in business to sell product

strict liability

policy which holds defendant liable regardless of his behavior; caused by defective product

Liability for negligence requires intending certain consequences or believing that they will occur. T/F

F

To avoid liability for negligence, a business owner must protect its patrons against all risks. T/F

F

Kelly is injured when she slips and falls on Lee's sidewalk. To determine whether Lee owed a duty of care to Kelly, Lee is subject to the standard of:

A. a realistic person

B. a reasonable person

C. a recognizable person

D. a reliable person

B

To protect its customers and other business invitees, M&M's must warn them of:

A. all dangers

B. concealed dangers

C. open dangers

D. no dangers

B

Dirk is driving a sport utility vehicle in which Elin is a passenger when they are involved in a traffic accident, and Elin is injured. Liability may be imposed on Dirk for Elin's injury if Dirk's driving is:

A. neither the causation in fact nor the proximate cause of the injury

B. only the causation in fact of the injury

C. only the proximate cause of the injury

D. the causation in fact and the proximate cause of the injury.

D

Bob is injured in a car accident and files a suit against Mary, whom Bob alleges was driving negligently. Mary claims that Bob was driving more carelessly than she was. Comparative negligence in tort cases may reduce a plaintiff's recovery:

A. only if the plaintiff was more at fault than the defendant

B. only if the plaintiff and defendant were equally at fault

C. only if the plaintiff was less at fault than the defendant

D. even if the plaintiff was only a small fraction at fault

D

Marta owns National Demolition Company. During a demolition by Marta's crew, Owen, a passerby, is injured. Under the theory of strict liability, Marta must pay for the injury:

A. only if the crew intended to injure Owen

B. whether or not the crew was at fault

C. only if the crew was at fault

D. under no circumstances

B

Matt is using his new Samsung Galaxy 7 phone when it explodes in his hand, causing Matt to have 3rd degree burns and suffers injury. Matt files a suit against Samsung, Inc., the manufacturer. A significant application of the doctrine of strict liability is in the area of:

A. constitutional law

B. ethics

C. product liability

D. negligence

C

Marie, a driver for National Transport Company, causes a five-car accident on an interstate highway. Marie and National are liable to:

A. all those who are injured

B. only those whose injuries could reasonably have been foreseen

C. only those whose cars were immediately ahead and behind Marie's vehicle

D. only those who do not have insurance

B

Branch Construction Company engages in blasting in its operation. This is subject to strict liability because

A. Blasting is an abnormally dangerous activity.

B. Blasting is a negligent activity.

C. Construction can be done without blasting.

D. Branch is a construction company.

A

element

something a plaintiff must prove to win lawsuit