BLAW Test 2

Chapter 5 – TORTS 

A. WHAT IS A TORT AND WHAT IS ITS PURPOSE? 

1. What is a tort? 

a. A civil wrong; 

b. A breach of a societal duty owed to another person; 

c. That causes legally compensable harm to that other person. 

2. What is the purpose of the law of torts? 

a. To provide that other person a legal remedy for that harm and/or breach of a legally protected right. 

i. Provides remedies for invasion of protected interests, emotional or physical injuries, destruction of or damage to property

b. The remedy is usually money in the form of damages. 

i. Compensatory damages – Compensation for the injury- normally money 

• Special damages – (specific/you can specify)  Quantifiable. 

• Ex. medical expenses, lost wages and benefits, irreplaceable item lost, repair costs

• General damages – to be assessed by the court. 

• Calculated by the jury, if no jury then judge

  • They determine this amount based on advisement of precedent of previous similar cases

• Physical or emotional pain and suffering

• Loss of companionship, reputation, or mental(or physical) capacity

ii. Punitive damages 

– Punishment for the conduct of the person who commits the court.

-  Mainly in intentional tort actions 

-  Normally under the influence or kidnapping/rape

-  ex. Defamation case in NZ against tabloid, there was proof their information came from an unreliable source (largely addicts), tabloid SAID didn’t care about damages because they knew the tabloid would make money. Court gave him damages, and because of their profit making attitude indicated punitive damages should be given punitive damages. 

Intentional Torts - violation of persons or property with intent

Unintentional Torts - negligence, breach of duty to act reasonably

Tort defenses

• Consent

  • If you consented to damaging act, it is not a tort liability

  • Louisiana specialty 

• Comparative Negligence

• Most widely used defense

• Where the jury is asked to say who is more at fault 

      - Statute of limitations

      - 2 years

B. INTENTIONAL TORTS - PERSONS 

1. What is “intentional”? 

2. Assault and battery. 

• Tort law aims to protect people

• Assault 

  • Threat to :cause injury, damage a person’s reputation, or property

• Battery

  • Unwanted contact, does not need to result in scar etc. SA is battery

3. Defamation

• Wrongfully hurting a person’s good reputation by telling a lie

• Oral defamation is slander

  • False statement of fact

  • Someone else had to be there/ hear/see it

  • If you’re a public figure you must prove malice

    • Statement was intended to damage reputation

    • Very difficult

• Written defamation is libel

•  Defamatory per say

  • If you allege someone is a criminal, they don’t need to prove that is harming their reputation. Crime is understood to harm reputation

• The same rules apply to a business, organization, or asset (painting or building) but its called disparagement

4. Wrongful interference with contract/business. Difference? 

• Particularly applicable to businesses bc aim is to be in competition with other businesses

• Contract

  • Lumley v. wagner & lumley v. gye

    • Gye says hey wagner come with me instead of lumley 

    • Lumley sues wagner for breach of contract and gye for interfering with a contract. Court finds equal liability

    • You have to pick one or split, you can’t get double damages. 

• Business relationship

C. INTENTIONAL TORTS - PROPERTY 

1. Trespass  

• To land

• To personal property 

• Very rarely asks for damages so asking for what

2. Conversion - often overlaps with trespass. 

• When you take or keep a person's property without their permission

• Civil side of crimes related to theft

D.UNINTENTIONAL TORTS – PROPERTY/PERSONS (NEGLIGENCE). 

Negligence

• Plaintiff must prove all of the following

  • Duty (of care)

    • To behave reasonably 

  • Breach (of that duty)

    • You have breached the duty of behavior 

  • Causation in fact/Proximate causation

    • CIF evidential length, shortened version of the butterfly effect - decided by jury

    • PF the chain isnt so long that the ultimate action would not be foreseeable at the start - decided by courts

  • Damages (legally compensable)

1. Duty of care and its breach 2/13

a. Reasonable persons standard The reasonable person’s obligation to behave reasonably in the given circumstances. 

b. Landowners need to warn of non-obvious risks 

c. The specialist has an obligation to act according to the reasonable standards of that specialty -malpractice (applies to any professional negligence ie. lawyers, doctors, engineers, accountants). 

Were you acting reasonably, was it serious or minor

2. Breach of that duty – breach and duty are often viewed together. 

3. Cause. 

• Normally the make or break in a court case

• Two issues

a. Cause-in-fact – a “but for” factual analysis. 

• Analysis of whether the negligent act in fact caused the injury

b. Proximate cause – a foreseeability legal analysis. 

• When the negligent act took place, was it reasonably foreseeable that such a negligent act would cause the injury that occurred

• Palsgraf page 137

  • Nobody could have foreseen that in helping someone on a train that it would dislodge a package, or that that package would have fireworks that would go off, and those would hit a pole that would hit something that would fall that should land on her foot

4. Legally Compensable Damages 

– more than hurt feelings. 

-  Flight of the Conchords. 

5. Defenses: 

a. Knowledge and assumption of risk

• If you sit in the foul zone you’re gonna get foul balls 

b. Superseding cause

•  Hijacks the cause halfway along the chain and turns it into another injury

• Another cause hitting the ambulance of the person you injured. First injury is your fault, and the second one is not.

c. Comparative Negligence – contributory negligence is practically extinct. 

• contributory negligence meant if the plaintiff in any way contributed to their injury they couldn’t recover

• Comparative says you are allowed to get whatever percent of what your do = to what youre responsible for

• If i am 30% liable, i am entitled to 70% of what i should have gotten if i was 0% at fault

E. STRICT LIABILITY 

1. Abnormally dangerous activities – e.g., pyrotechnics. 

2. Animals 

• usually dangerous animals, though it depends upon the circumstances.  

• Wild animals but also domestic pets if they are known to have caused injury before

F. PRODUCT (MANUFACTURERS’) LIABILITY 

• Consumers should be protected against unsafe products, you shouldn't have to bring a negligence action against the manufacturer. You don’t need to be the person who bought the product to found an action against them. 

1. Can pursue the seller, the distributor, and/or the manufacturer for unreasonably dangerous products that cause injury – dangerous beyond the expectation of the ordinary consumer – also takes into account situations where there is an economically feasible less dangerous alternative. 

2. Ingredients: (requirements to prove liability)

a. Defective condition at sale 

b. Defendant in the business of selling the product

c. Unreasonably dangerous due to a defect

d. Plaintiff must incur Physical harm to themselves or property 

e. Defect must be Proximate cause of injury

f. Goods must not be tampered with. 

3. Types of defects include: 

• Manufacturing defects 

a. Defect in product manufacture, assembly or quality control 

b. Defect in product design; 

c. Defect in product warning. 

4. Defenses: 

a. Commonly known dangers/Assumption of Risk; 

b. Misuse of the product; 

c. Comparative Negligence.

Chapter 6 – CRIMINAL LAW 

A. ESSENTIAL ELEMENTS 

1. Crime is a violation against society as a whole, set out in a statute, prosecuted by the District Attorney, or a U.S. Attorney, for which the punishments are prescribed in the statute itself. 

2. Whereas torts require proof on the preponderance of the evidence (you’re more right than the other person 51%), crimes require proof beyond a reasonable doubt. 

a. The prosecutor must prove every ingredient of the crime – both the actus reus and mens rea (see below) for each ingredient – in order to secure a guilty verdict. 

b. In all other areas of law, the proof is only on the preponderance of the evidence, or the “balance of proof”. 

3. Felony vs Misdemeanor 

• Felony 

  • Crime for which the maximum punishment is imprisonment for more than one year 

• Misdemeanor

  • Crime for which the maximum penalty is less than one year's imprisonment

4. Actus Reus – p155 

a. The prohibited act. 

b. You do not even need to know it is prohibited. 

5. Mens Rea – p156 

a. The requisite intention to perform the prohibited act. 

b. Once again, technically you do not even need to know that the act is prohibited – you just need to intend to do it. 

c. A small percentage of crimes do not require this intention c.f. malum in se versus malum prohibitum – e.g., speeding – “strict liability” see below. 

6. Some crimes set the proof standard as recklessness, criminal negligence, or strict liability. 2/18

7. Corporate liability. 

B. CRIMES – A SAMPLING 

1. VIOLENT 

– e.g., robbery, murder, rape, assault and battery 

2. PROPERTY 

– e.g., burglary, larceny, arson. 

3. WHITE COLLAR 

– e.g., embezzlement

• Fraudulent appropriation of money or property by a person who was entrusted with them

• Sisuphan - took money out of night safe, fellow employee snitched bc it wasn’t posted, waited more than 24 hours, was trying to get the other guy fired, 

– mail and wire fraud 

– bribery 

4. ORGANIZED 

– e.g. money laundering 

• Taking illegally obtained money and funneling it through a legitimate business to create income for the business 

– RICO violations 

• Racketeering

• 26 different crimes, any two of which will qualify as a RICO violation

• Meant to impose liability further up the criminal chain

C. DEFENSES – A SAMPLING 

1. Self-defense 

– justifiable use of force

– proportionality is important 

- you can’t shoot a pickpocket 

- if you feel your life or body are in danger you need to be reasonably certain of that harm before exerting equal or possibly more force 

2. Necessity 

– Like self defense but must be on another person not on your group

– Again, justifiable use of force and proportionality is important. 

3. Insanity 

– the person’s mind is incapable of mustering the sufficient intent for mens rea

– Sufficient to remove the necessary mens rea 

– the unabomber - ted kaczynski

4. Statutes of Limitation 

– The prosecutor must bring the action within a certain period of time, and different crimes have different statutes 

– some exceptions apply - when you leave the state or country the statute of limitations count down stops until you come back 

– murder cases as well as some rape and kidnapping have no SoL

5. Immunity 

– in a criminal case against you, you do not have to say anything (5th) 

– prosecutor can offer a deal where you get a reduced or no sentence in exchange for cooperating or testimony. Can involve other people or not. Plea bargain

D. CONSTITUTIONAL SAFEGUARDS. 

1. FOURTH AMENDMENT. 

a. Unreasonable search and seizure 

– a legal search and seizure needs reasonable individualized suspicion. Herring. Also applies to search warrants 

b. Warrant for arrest needs probable cause 

- the logical belief, supported by facts and circumstances that a crime has been, is being, or will be committed.

- must be limited in scope 

c. Reasonable expectation of privacy

2. EXCLUSIONARY PROTECTIONS. 

• If evidence is obtained in a manner that conflicts with your constitutional rights, you have the right to get that evidence dismissed

a. Fruit of the Poisoned Tree 

– evidence obtained in violation of a constitutional safeguard is excluded, and inadmissible to be presented against you. Herring. They didnt determining the gun and meth excludable?

b. Miranda rights 

– you have the right to remain silent etc.  

– from the fifth amendment 

– you have the right to a lawyer - from the sixth amendment

E. PROCESS 

1. Arrest. 

2. Booking. 

3. Initial Appearance. 

4. Either: 

a. Grand Jury issues an Indictment

b. Preliminary Hearing in front of a magistrate judge issues a Bill of Information. 

5. Arraignment. 

6. Trial and sentencing.

Grand jury vs petite jury!

Chapter 8 – INTELLECTUAL PROPERTY 

A. TRADEMARKS 

1. Distinctive word, mark, motto, logo, sound, to identify a business. 

2. To prevent consumer confusion – Coca-Cola case – “Dilution” of a mark in common use. 

3. Requires registration. 

4. Infringement – no intention necessary – must be substantial. 

a. Injunction. 

b. Damages – the offending product’s profits belong to the owner of the mark. 

5. The law also covers associated concepts: 

a. Service marks. 

b. Trade dress. 

c. Trade names – not registrable. 

B. PATENTS 

1. Monopolies for: 

a. Inventions – 20 years

b. “Designs” – 14 years. 

2. Requires registration. 

3. First person to file application is the presumptive patent holder. 

4. What is patentable? 

5. Infringement - no intention necessary – must be substantial infringement. 

a. Injunction – need to show damage against existing products. 

b. Damages - the offending product’s profits belong to the owner of the patent. 

C. COPYRIGHT 

1. Protects against copying of: a. Literary works; and b. Artistic works. 

2. Protection for life of author/artist plus 70 years. 

3. Automatic - does not require registration – copyrighted from when the “pen hits the page”. 

4. Infringement usually results in damages (accounting of profits) – sometimes injunction. 

5. Exclusions: 

a. Fair use; 

b. Impact on the market; 

c. First sale doctrine. 

D. TRADE SECRETS. 

1. Protects against disclosing of business/corporate confidential information – includes (among many other things): 

a. Ideas. 

b. Formulas and recipes. 

c. Client lists. 

d. Price lists. 

e. Floor plans. 

f. Flow charts. 

2. Infringement is usually damages – sometimes punitive. 

3. Criminal charges can be brought because it is theft of an asset.

Chapter 8 – INTELLECTUAL PROPERTY 

A. TRADEMARKS 

1. Distinctive word, mark, motto, logo, sound, to identify a business. 

2. To prevent consumer confusion 

– Coca-Cola case 

– “Dilution” of a mark in common use. 

3. Requires registration. 

4. Infringement 

– no intention necessary 

– must be substantial. 

a. Injunction. 

b. Damages 

– the offending product’s profits belong to the owner of the mark. 

5. The law also covers associated concepts: 

a. Service marks. 

b. Trade dress. 

c. Trade names – not registrable. 

B. PATENTS 

1. Monopolies for: 

a. Inventions – 20 years

b. “Designs” – 14 years. 

2. Requires registration. 

3. First person to file application is the presumptive patent holder. 

4. What is patentable? 

5. Infringement 

- no intention necessary 

– must be substantial infringement. 

a. Injunction 

– need to show damage against existing products. 

b. Damages

 - the offending product’s profits belong to the owner of the patent. 

C. COPYRIGHT 

1. Protects against copying of: 

a. Literary works

b. Artistic works. 

2. Protection for life of author/artist plus 70 years. 

3. Automatic 

- does not require registration 

– copyrighted from when the “pen hits the page”. 

4. Infringement 

• usually results in damages (accounting of profits) 

– sometimes injunction. 

5. Exclusions: 

a. Fair use

b. Impact on the market

c. First sale doctrine. 

D. TRADE SECRETS. 

1. Protects against disclosing of business/corporate confidential information – includes (among many other things): 

a. Ideas. 

b. Formulas and recipes. 

c. Client lists. 

d. Price lists. 

e. Floor plans. 

f. Flow charts. 

2. Infringement is usually damages – sometimes punitive. 

3. Criminal charges can be brought because it is theft of an asset.

Chapter 10 – CONTRACT FORMATION 2/25/25

A. BASICS 

1. What is a contract? 

• Agreement that can be enforced in court

• A set of promises and each party has the right to sue if the other breaches 

2. Sources of contract law

• The common law

  • Courts liked contracts because they were laws between two parties

• The uniform commercial code 

  • Codified for the sale of goods because contract law for sale in each date was different which was confusing

3. Objective theory. 

B. TYPES – FORMATION AND STATUS 

1. Bilateral versus Unilateral

•  Bilateral 

  • if the offeree can accept simply by promising to perform, contract exists when promises are exchanged

  • You and i will do x and y at the same time 

• Unilateral 

  • If the offeree must perform what is promised in the contract

  • When you finish doing X (or have taken a substantial step to finish it), I will do Y

2. Formal versus Informal

• Formal

  • Need a particular or special form

  • Regard land or insurance, others as well

• Informal

  • All others that don’t need a special form

3. Express versus Implied

• Express contract  

  • explicitly either orally or written communicated

• Implied contract

  • based on the usual conduct of the parties or the trade

4. Executed versus Executory (status of performance) 

• Executed contracts

  • The terms have all been completed

• Executory Contract

  • Not yet performed

  • Ex. an active lease

C. ENFORCEMENT 

1. Valid 

– Fully enforceable 

2. Voidable 

• Looks legal

– Valid except one or more parties may (if they want) avoid the contract using an exception of capacity. 

• Party a knows party b is drunk. Party b can use capacity exception

3. Unenforceable 

– i.e., for want of form or content – usually a legal issue. 

• Change in the law has made it unenforceable 

• Ie it had to been in writing and its not

4. Void 

• Blatantly illegal

– Never valid due to legal deficiency – illegality etc. 

• If i agree to kill him and i don’t, you cant hold me accountable

D. INGREDIENTS/ Requirements of a valid contract

1. Agreement: 

a. Offer (must be made) 

i. Intent

• You can’t accidentally enter a contract

ii. Certainty 

• Terms must be reasonably certain so parties and courts can ascertain terms of contract 

-  Revocation

- Termination of the offer may occur before acceptance in most circumstances

- There are some irrevocable offers

- could also be Rejected or receive a counteroffer 

b. Acceptance (offer must be accepted)

i. Voluntariness 

• Can not be imposed and unless for implied cases, it can not be silence

ii. Unequivocality 

•  mirror rule. 

  • Your acceptance must accept the offer as made, if it’s changed, that’s a counter offer. Acceptance must mirror the offer

c. Communication – compare Bilateral to Unilateral. 

• Must be made in the same manner that the offer was made

• Not as applicable with internet and phones

2. Consideration

a. Legally sufficient value

b. Bargained-for exchange – basis for bargain. 

c. Agreements that lack consideration 

i. Pre-existing contractual duty 

ii. Past consideration 

iii. Illusory promises 

3. Contractual Capacity  

a. Minors 

b. Intoxication 

c. Mental deficiency. 

4. Legality 

a. Statute 

b. Public Policy 

e.g., restraint-of-trade agreements.I. Contract Law

A. Contract Formation:

• Definition: A contract is an agreement that is enforceable by law.

• Sources: Contract law comes from common law and statutory law (like the Uniform Commercial Code).

• Objective Theory: Contractual intent is determined by outward, objective manifestations, not subjective intent.

• Types:

◦ Bilateral vs. Unilateral: Bilateral contracts involve promises exchanged by both parties. Unilateral contracts involve a promise for an act. (Miller_BLTLET_10e_PPT_CH10.pdf) gives examples: “Javier tells Ann that he will give her $200 in cash for her smartphone on the following Friday…Ann accepts Javier’s offer, and promises to give him the phone…Javier and Ann have formed a bilateral contract." In contrast, "Reese says to Kay, ‘If you drive my car from New York to Los Angeles, I’ll give you $1,000.’ Only on Kay’s completion of the act does she fully accept Reese’s offer to pay $1,000…there are no legal consequences [if she doesn't do it]."

◦ Formal vs. Informal: Formal contracts require a specific form (e.g., under seal). Informal contracts do not.

◦ Express vs. Implied: Express contracts are explicitly stated. Implied contracts are inferred from conduct. (Miller_BLTLET_10e_PPT_CH10.pdf) directs students to "provide examples of each type of contract to better understand the differences."

◦ Executed vs. Executory: Executed contracts are fully performed. Executory contracts are not yet fully performed. (Miller_BLTLET_10e_PPT_CH10.pdf) directs students to "define executed and executory contracts."

• Enforcement:

◦ Valid: Fully enforceable. (Miller_BLTLET_10e_PPT_CH10.pdf) identifies "Agreement, Legally sufficient consideration, Parties have legal capacity to enter into contract, Legal purpose" as requirements for a valid contract.

◦ Voidable: Valid, but one or more parties can avoid it due to a defense (e.g., lack of capacity).

◦ Unenforceable: Not enforceable due to a legal issue (e.g., lack of proper form).

◦ Void: Never valid due to a fundamental legal defect (e.g., illegality).

• Ingredients of a Contract:

◦ Agreement: Offer: Requires intent and certainty of terms. An offer can be terminated before acceptance. (Miller_BLTLET_10e_PPT_CH10.pdf) identifies the "Offeror [must] have serious intention to become bound by offer," that "[t]erms of offer must be reasonably certain, or definite," and that "[o]ffer must be communicated to offeree."   

Acceptance: Requires voluntariness and unequivocal assent ("mirror rule"). Communication is crucial.

◦ Consideration: Legally sufficient value. Bargained-for exchange. Consideration is the basis for the bargain. * Agreements Lacking Consideration: Pre-existing contractual duty, past consideration, and illusory promises are not sufficient. (Miller_BLTLET_10e_PPT_CH10.pdf) offers Spotlight Case Example 10.17, where "Iverson’s promise was made in return for a past consideration…Iverson stated his intention was to give Blackmon a gift."

◦ Capacity: Legal ability to enter into a contract (e.g., not a minor, not intoxicated, mentally competent). (Miller_BLTLET_10e_PPT_CH10.pdf) states that minors are "not legally bound by contracts."

◦ Legality: The contract's purpose must be legal and not violate statute or public policy (e.g., restraint-of-trade agreements may be illegal). (Miller_BLTLET_10e_PPT_CH10.pdf) notes that "[c]ontracts to commit a crime violate statute."

• Defenses to Enforceability: Lack of voluntary consent, lack of proper form (Statute of Frauds). (Miller_BLTLET_10e_PPT_CH10.pdf) includes "Voluntary consent [and] Form" as defenses to enforceability of a contract.

B. Contract Performance, Breach, and Remedies:

• Voluntary Consent: A contract can be challenged if genuine consent is absent.

◦ Mistake: Of Fact: Can be unilateral (usually not a basis for rescission unless the other party knew or should have known of the mistake or there's a substantial math error without gross negligence) or bilateral (contract may be rescinded). (Miller_BLTLET_10e_PPT_CH11.pdf) lists "Unilateral Mistakes of Fact [and] Bilateral (Mutual) Mistakes of Fact" as affecting voluntary consent. Of Value: Generally, not a basis for rescission. (Miller_BLTLET_10e_PPT_CH11.pdf) includes "Value is variable [and] Contract is enforceable if mistake concerns future market value"

◦ Fraudulent Misrepresentation: Requires a material fact, intent to deceive, reliance, and injury.

◦ Undue Influence: Voidable due to lack of genuine consent. (Miller_BLTLET_10e_PPT_CH11.pdf) notes that with undue influence, the "Contract lacks voluntary consent and is voidable."

◦ Duress: Voidable due to lack of genuine consent (coercion). (Miller_BLTLET_10e_PPT_CH11.pdf) includes "Illegal threats, blackmail, extortion to induce consent" as examples of duress.

•

Third Parties:

◦ Assignment: Transferring beneficial rights in a contract. Rights that cannot be assigned include when "a statute expressly prohibits assignment [or w]hen a contract is personal in nature."

◦ Delegation: Transferring duties in a contract, but the delegator remains liable.

◦ Third-Party Beneficiary Contracts: Contracts designed to benefit someone other than the contracting parties. Distinguish between intended and incidental beneficiaries. (Miller_BLTLET_10e_PPT_CH11.pdf) directs students to "Describe how contract conditions affect performance" in this context.

• Performance and Discharge:

◦ Terms of Performance: Can be absolute or conditional.

◦ Discharge by Performance: Complete performance. Substantial performance: Minor breach. * Material breach: Significant failure to perform.

◦ Discharge by Operation of Law: Material alteration, statutes of limitations, bankruptcy, impossibility of performance. (Miller_BLTLET_10e_PPT_CH11.pdf) lists "Material alteration of the contract, Statutes of limitations [and] Impossibility of performance" as examples.

•

Remedies:

◦

Legal Remedies (Monetary Damages): Compensatory damages: Direct losses and costs. Consequential damages: Foreseeable damages resulting from the breach. Punitive damages: To punish the breaching party. Nominal damages: A small amount awarded when a breach occurred but no actual damage was proven.

◦

Equitable Remedies: Specific performance: Requires the breaching party to perform the contract. Rescission: Cancellation of the contract. * Reformation: Correcting the contract to reflect the parties' true intentions.

◦

Liquidated Damages: Damages specified in the contract. (Miller_BLTLET_10e_PPT_CH11.pdf) states that these are enforceable when "it is apparent that damages would be difficult to estimate in the event of a breach" and "[t]he amount set as damages is reasonable and not excessive."

◦

Mitigation of Damages: The non-breaching party has a duty to minimize damages.

◦

Waiver of Breach: The non-breaching party can waive the breach.

◦

Contract Provisions Limiting Remedies: Exculpatory clauses, limitation-of-liability clauses.

II. Tort Law

A. Basics:

• Definition: A civil wrong that breaches a societal duty owed to another person and causes legally compensable harm.

• Purpose: To provide a legal remedy (usually money) for harm caused by a breach of a legally protected right.

• Damages:

◦ Compensatory: Compensation for the injury. Special damages: Quantifiable (e.g., medical bills). General damages: Non-monetary losses (e.g., pain and suffering).

◦ Punitive: Punishment for the tortfeasor's conduct.

B. Intentional Torts:

• Definition: Requires intent.

• Against Persons: Assault, battery, defamation, wrongful interference with contract/business. (Miller_BLTLET_10e_PPT_CH05.pdf) provides the example of "Alex intends to hit Blake with a bat but misses, and hits Carson instead. Carson can sue Alex for the tort of battery, because Alex’s intent can be carried over to Carson."

• Against Property: Trespass to land, trespass to personal property, conversion.

• Defamation: Involves wrongfully hurting a person's reputation. Requires a false statement of fact, publication to a third party, and damages to reputation. Public figures must prove malice. (Miller_BLTLET_10e_PPT_CH05.pdf) notes that in defamation, the "[s]tatement was understood as being about plaintiff, and tended to harm reputation."

• Invasion of Right to Privacy and Appropriation (IRPA): Includes intrusion into an individual’s affairs or seclusion.

C. Unintentional Torts (Negligence):

• Duty of Care: The reasonable person's obligation to behave reasonably in the given circumstances.

• Elements of Negligence: Duty, breach of duty, causation (actual and proximate), damages.

• Defenses: Assumption of risk, superseding cause, contributory negligence, comparative negligence. (Miller_BLTLET_10e_PPT_CH05.pdf) offers the example that "While riding his bicycle, Derrick negligently hits Julie…While she is waiting for help to arrive, a small plane crashes nearby and explodes…Derrick will be liable for Julie’s fractured hip…Normally, though, Derrick will not be liable for the burns caused by the plane crash, because the risk of a plane’s crashing nearby and injuring Julie was not foreseeable."

D. Product Liability:

• Negligence: Based on a manufacturer's failure to exercise reasonable care.

• Strict Liability: Liability regardless of fault.

• Ingredients: Defective condition at sale, defendant in the business of selling the product, unreasonably dangerous, physical harm, proximate cause, goods not tampered with.

• Types of Defects: Defect in manufacture, design, or warning.

• Defenses: Commonly known dangers/Assumption of Risk, Misuse of the product, Comparative Negligence.

III. Criminal Law

A. Basics:

• Definition: A violation against society as a whole, set out in a statute, prosecuted by the government.

• Burden of Proof: Beyond a reasonable doubt (higher than the "preponderance of the evidence" standard in civil cases). (Miller_BLTLET_10e_PPT_CH06.pdf) directs students to "Explain the burden of proof required in a criminal case."

• Essential Elements:

◦ Actus Reus: The guilty act.

◦ Mens Rea: The wrongful mental state or intent. Some crimes require recklessness, criminal negligence, or are strict liability offenses (no intent required). (Miller_BLTLET_10e_PPT_CH06.pdf) states that "[t]wo elements normally must exist simultaneously for a person to be convicted of a crime: 1. the performance of a prohibited act (actus reus); and 2. a specified state of mind or intent on the part of the actor (mens rea)."

• Corporate Liability: Corporations can be held liable for criminal acts.

B. Types of Crimes:

• Violent Crimes: Robbery, murder, rape, assault and battery.

• Property Crimes: Burglary, larceny, arson. (Miller_BLTLET_10e_PPT_CH06.pdf) defines larceny as "wrongful taking of another’s property" and arson as "intentional burning of a building"

• White-Collar Crimes: Embezzlement, mail and wire fraud, bribery.

C. Defenses to Criminal Liability:

• Justifiable Use of Force: Self-defense.

• Lack of Required Mental State: Insanity, mistake.

• Entrapment: Induced by law enforcement to commit a crime.

• Miranda Rule: Requires informing arrested individuals of their rights.

• Criminal Process: Arrest, indictment/information, arraignment, trial, sentencing.

D. Cyber Crimes:

• Botnets, malware, worms, viruses, service-based hacking.

IV. Intellectual Property

A. Trademarks:

• Definition: Distinctive word, mark, motto, logo, sound, to identify a business and prevent consumer confusion.

• Protection: Prevents consumer confusion and dilution of the mark.

• Registration: Required.

• Infringement: No intention necessary, must be substantial. Remedies include injunction and damages (the offending product's profits belong to the owner).

• Associated Concepts: Service marks, trade dress, trade names (not registrable).

• Trademark Dilution: (Miller_BLTLET_10e_PPT_CH08.pdf) says that "[a] famous mark may be diluted not only by the use of an identical mark, but also by the use of a similar mark, provided that it reduces the value of the famous mark."

• Lanham Act: Protects manufacturers from losing business to rivals using confusingly similar trademarks.

• Distinctiveness of the Mark: Fanciful and arbitrary trademarks receive automatic protection, generic terms receive no protection.

• Licensing: An agreement that permits the use of a trademark, copyright, patent, or trade secret for limited purposes.

B. Patents:

• Definition: Monopolies granted for inventions (20 years) and designs (14 years).

• Registration: Required. First person to file is the presumptive patent holder.

• Infringement: No intention necessary, must be substantial. Remedies include injunction and damages (the offending product's profits belong to the owner).

• Remedies for Patent Infringement: Injunction, damages for royalties and lost profits, attorney's fees, treble damages for willful infringement.

C. Copyright:

• Definition: Protects against copying of literary and artistic works.

• Duration: Life of the author plus 70 years (for works created after January 1, 1978).

• Infringement: Occurs when someone copies the form or expression of an idea.

• Fair Use: Allows limited use of copyrighted material without permission (e.g., for criticism, comment, news reporting, teaching, scholarship, research).

• First Sale Doctrine: The owner of a particular copyrighted item can sell or dispose of it without the copyright owner's permission.