21 multiple choice and Reason for correct answer :Rule and/or definition

1) When the highest court of a state court issues a binding ruling on a matter oflaw, who must follow the precedent set by the state court?
A) The United States Supreme Court
B) The U.S. Congress
C) State legislatures
D) Lower courts within the same state
E) All lower courts in the United States
Reason? Rule and/or definition
For questions 2,3,4 Devin has several full gas cans in the bed of her pick-up truck,
because she runs a landscaping company and needs the gas for her mowers. On
the way home from the gas station, Devin stops at her bank and exits her truck.
Teresa pulls behind her and negligently rear-ends Devin’s pick-up. The truck
explodes and results in the bank building burning to the ground. The bank sues
Teresa for negligence claiming that Teresa should have to pay for the entire bank
building. The bank claims that it should be able to recover under the res ipsa
loquitur doctrine.
2) Does actual cause exist in the bank’s action against Teresa?
A) Actual causation exists because the bank would not have been destroyed if
Teresa had fulfilled her duty to drive properly.
B) Actual cause is present because as a matter of policy, it is believed that
someone who rear- ends a vehicle should be responsible for damages.
C) Actual cause is present because Teresa was the legal cause of the bank burning.
D) Actual cause is not present because Teresa is not the legal cause of the bank
burning.
E) Actual cause is not present because Teresa is not the proximate cause of the
bank burning.
Reason? Rule and/or definition
3) Is Teresa the proximate cause of the bank burning?
A) Teresa is not the proximate cause of the bank burning because it was not
foreseeable that Devin would have gas in the back of her pick-up truck that would
result in such a fire.
B) Teresa is not the proximate case of the accident because her actions were not
the cause in fact
C) Teresa’s actions were not the proximate cause of the accident because actual
causation cannot be established since it was foreseeable that gas can result in a
fire.
D) Teresa’s actions were the proximate cause of the bank’s burning because
actual cause is
E) Teresa’s actions were the proximate cause ofthe bank’s burning because cause
in fact can be established.
Reason? Rule and/or definition
4) Claiming that recovery under the res ipsa loquitur doctrine is an option, do you
believe the bank is correct?
A) Yes, the bank is correct because under that doctrine defendants are liable for
any harm caused.
B) Yes, the bank is correct only if Teresa has sufficient insurance to cover the bank
burning. C) Yes, the bank is correct only if it can be established that Teresa was a
repeat driving offender.
D) No, the bank is incorrect because the issue here is causation, not whether
there was a breach of duty of care.
E) No, the bank is incorrect because res ipsa loquitur is a defense.
For questions 5,6 Emilia filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC), alleging that her employer,
MegaTron, failed to promote her because of her nationality and gender. The
EEOC had already received several discrimination charges from other employees
alleging similar conduct by MegaTron. When Emilia was hired, she signed an
employment contract with MegaTron that included a clause stating that all workrelated claims must be resolved through arbitration.
Reason? Rule and/or definition
5) If, after filing her charge of discrimination with the EEOC, Emilia then filed a
discrimination lawsuit against MegaTron, what would the court most likely do?
A) Dismiss the lawsuit, because of Emilia’s poor performance.
B) Dismiss the lawsuit because of the binding arbitration clause in her
employment contract.
C) Allow the lawsuit to move forward because employees have a right to file a
lawsuit.
D) Allow the lawsuit because Emilia did not foresee she might suffer
discrimination.
E) Allow the lawsuit because arbitration clauses in employment contracts are not
binding on employees.
Reason? Rule and/or definition
6) Assume Emilia opted to arbitrate her claim against MegaTron, and the
arbitrator awarded her in punitive damages. MegaTron’s officers were appalled
and filed a lawsuit seeking to set aside the arbitrator’s award. On what basis could
a court ovenurn the arbitrator’s award?
A) That Emilia may have been lying when she testified during the arbitration.
B) That Emilia did not want to arbitrate.
C) That the arbitrator misused his authority in making the award.
D) That the parties agreed in advance not to give closing statements.
E) That the arbitrator told the parties in advance that he worked at MegaTron
thirty years ago and disclosed this fact in writing.
Reason? Rule and/or definition
7) The ……………stipulates that if a state tries to pass a law that conflicts within an
area that has federal legislative jurisdiction it will be found unconstitutional.
A) State powers doctrine
B) Bill of Rights
C) State preemption doctrine
D) Privileges and immunities clause
E) Federal preemption doctrine
Reason? Rule and/or definition
8) Sana, the president of a company that makes paper, has an interest in the
environment. She recently went to a seminar on environmental dangers and has
decided to take steps to clean things up. She started at home and has now feels
compelled to change things at work. Sana had to face the fact that her company
has been cheating and is not in compliance with applicable environmental
regulations due to dumping in a nearby river. Her Company has never been cited
because it employs a very large number Of people in the community, including
the mayor’s husband and the chief-of- police’s brother. On her mission to clean
things up, Sana has decided to go even further than the law requires and
implement the very latest environmental protections. When she announced her
plan, the chair of the company’s board of directors, Jessica, had a meeting with
Sana. Jessica told Sana to analyze the situation carefully because the cost of the
additional equipment would mean no dividend to shareholders and no raise for
employees. Furthermore, Jessica told Sana that installing all the new equipment
would result in higher prices for the company’s paper product and could bankrupt
the company because of foreign competition. Jessica hinted that Sana could be
fired if she persisted. Jessica also suggested that Sana should just be concerned
with a minimal standard Of ethics. Sana decides to go forward with her plan to
clean things up under the theory’ that she wants to treat others in the same
manner that she wants to be treated. Under Sana’s theory, if she did not
understand the importance of the environmental improvements, she would want
them to be thrust upon her.
Sana’s idea is best referred to as
A) The Golden Rule
B) The Disclosure Principle
C) Help Peers Test
D) The Sarbanes-Oxley Rule
E) The Greenhouse Rule
Reason? Rule and/or definition
9)Coleman owns a sporting goods store and has purchased top-quality, brandname athletic shoes from Jade’s Shoe Distribution for many years, but they have
no written contract in place. Last month, Coleman learned that the latest
shipment from Jade’s are not authentic, brand-name shoes but instead a knockoff brand that costs a fraction of the price that Coleman pays. Coleman cannot
sell these shoes because his customers would know the difference. Coleman
demanded that Jade refund him. Jade sent Coleman a written request for
arbitration within thirty days. In response, Coleman called Jade, threatening to file
a lawsuit against Jade and exposing her company as a fraud. Jade laughs, saying
Coleman is required to arbitrate their dispute within thirty days.
Is Jade correct that they are required to arbitrate their dispute?
A) Yes, because Jade demanded in writing that they arbitrate their dispute.
B) Yes, but only because Jade’s written demand had a thirty-day deadline.
C) No, because a party is never required to arbitrate.
D) No, because arbitration is voluntary and Coleman never signed an agreement
to arbitrate their disputes.
E) No, because a party cannot enter a contract that requires them to arbitrate
instead of filing a lawsuit.
Reason? Rule and/or definition
For questions 10,11,12 Leaf, an employee of the alifomia Department of Forestry,
insisted on signing inter-office memoranda with his name and the initials “FOJT,”
an abbreviation for his church “Followers of Jesus’ Trees”. Leafs supervisor, Milo,
told Leaf that there was a rule prohibiting displays of religion at work and insisted
that Leaf cease placing the initials of his church on government paperwork. When
Leaf refused to follow the work rule, he was terminated.
10) Leaf wants to file a lawsuit against the Department challenging his
termination. What would
A) For the because the work rule did not substantially burden
B) For the Department because it was only a work rule, and not a law.
C) For the Department because it did not violate the First Amendment.
D) For Leaf, because the work rule violated his free exercise of religion.
E) For Leaf, because the work rule violated the establishment clause.
Reason? Rule and/or definition
11) Before his termination, Leaf tells Milo that he is drafting a California law that
would provide funding to his church because the church serves to protect trees
and the environment in general. Milo tells Leaf that such a law would violate the
establishment clause of the U.S. Constitution. Under what circumstances would a
state law be permissible under the establishment clause?
A) If it has a secular purpose.
B) If it has a secular purpose and does not foster an excessive government
entanglement with religion.
C) If the government can prove either ( 1) it has a secular legal purpose, (2) has a
primary effect of neither advancing nor inhibiting religion, or (3) does not foster
an excessive government entanglement with religion.
D) Ifthe government can prove it does not foster an excessive government
entanglement with reli gion.
E) If it has a secular legal purpose, has a primary effect of neither advancing nor
inhibiting religion, and does not foster an excessive government entanglement
with religion.
Reason? Rule and/or definition
12) After his termination, Leaf returned to his office to pack his belongings. He
uploaded a message on the Department’s website, which stated that Milo Mlas a
thief and has stolen thousands of dollars from the State of California. Milo, who
had not stolen money from the State and is not a thief, later sued Leaf for
defamation. How would a court likely rule?
A) For Leaf because he has an absolute right to free speech under the First
Amendment.
B) For Leaf because the rational-basis test applies.
C) For Leaf because he did not use any lewd, profane, or obscene words.
D) For Milo because the First Amendment does not protect defamatory speech. E)
For Milo, but only if Leaf also used fighting words.
Reason? Rule and/or definition
For questions 13,14,15 Shaun, who is a bit eccentric, is fed up with the way a
certain employer in his town treats employees and decides to sue on behalf of all
those employees. Shaun also says that he is going to start his case at the appellate
court level, skipping over all those “lesser” judges. Shaun says that the Appellate
justices will surely hear him out and that he will also seek a jury.
13)Will an appellate court hear Shaun’s case?
A) Yes, so long as a state trial court judge approves and certifies the case for the
appellate court
B) Yes, but only if Shaun can prove that he would have had to wait at least a year
for a trial at
C) Yes, but only if Shaun files his case in state court as opposed to federal court.
D) Yes, but Shaun is not entitled to a jury.
E) No, because Shaun is required to first file the case in the appropriate trial court.
Reason? Rule and/or definition
14) Regardless Of the court involved, can Shaun act as plaintiff for the
employees?
A) Yes, so long as he gets permission slips from all of them.
B) Yes, so long as no employee files an objection.
C) Yes, so long as he gives any money he receives to them.
D) No, because he lacks standing.
E) No, because venue is lacking.
Reason? Rule and/or definition
15) Assuming Shaun eventually ends up at the appellate level, is he entitled to a
jury at the appellate level?
A) No, jurors are not used at the appellate court level.
B) Yes, but only if he had a jury first at the trial court level.
C) Yes, if he satisfies the requirements to initially bring the case in appellate court,
he is entitled to a jury.
D) Yes, but only if the employer agrees to a jury.
E) Yes, because appellate courts decide questions of fact while questions of law
are decided at the trial court level.
Reason? Rule and/or definition
16) Trudy has moved from Texas to Alabama. The state does not allow
nonresidents to seek employment without first passing a loyalty test to Alabama.
Alabama’s law violates which clause under the U .S. Constitution?
A) The right employment clause
B) The privileges and immunities clause
C) The non-resident’s rights clause
D) The commerce clause
E) The dormant commerce clause
Reason? Rule and/or definition
17) George is riding his skateboard down the street while listening to music with
earbuds in. George does not see Martha, a store owner, who is putting flowers
out in front of her store. He looks up just in time and swerves to miss Martha but
knocks her flower display down, shattering it to pieces. Is he liable?
A) No, Martha was not injured.
B) No, because property is not a compensable loss.
C) No, Martha had a duty not to be on the sidewalk. D) Yes, Martha suffered a
compensable loss.
E) Yes, because George had the intention of being on the sidewalk which is always
a breach of his duty of care.
Reason? Rule and/or definition
18) Montana implemented a new law that determined that males could not
obtain their drivers licenses until they are 18. Females, on the other hand, could
obtain their licenses at 16. If this law is challenged, what level of scrutiny would
the courts use?
A) Rational basis scrutiny
B) Intermediate scrutiny
C) Strict scrutiny
D) Popular scrutiny
E) Systemic scrutiny
Reason? Rule and/or definition
19) Louisa decides to go on a zip line adventure. She signs a contract before she
begins to go on the zip line, which says that she assumes the risks of accident or
injury. While walking up the steps to grab the zip line, Louisa falls down due to a
broken hand rail on the stairs. Could the property owner be held responsible?
A) No, because of Louisa’s express assumption of the risk.
B) No, because of Louisa’s implied assumption of the risk.
C) No, because Louisa fell on her own.
D) Yes, because a fall due to a faulty handrail was not the type of risk Louisa had
assumed in the contract.
E) Yes, because she had not yet started zip lining but after she actually grabbed
the line, the company would no longer be held responsible.
Reason? Rule and/or definition
For questions 20,21 Felicia invented a new type of mask that was not subject to
fogging for scuba divers and obtained a patent on it. She agrees to allow Mei to
manufacture and sell the mask. She receives a sum of money for every mask that
Mei sells. Felicia also entered into an agreement with Evan to allow him to sell the
masks, but only if he also purchased non-patented diving suits from Felicia. All
parties proceeded to do very well with their sales.
20) Felicia’s agreement with Mei allowing Mei to sell the mask is referred to as
which of following?
A) A license
B) A patent agreement
C) A trade agreement
D) An illegal agreement
E) A franchise agreement
Reason? Rule and/or definition
21) The agreement between Felicia and Evan is what type of agreement?
A) It is a legal tying arrangement.
B) It is a legal cross-licensing agreement.
C) It is an illegal tying arrangement.
D) It is an illegal cross-licensing agreement.
E) A legal contractual agreement.
Reason? Rule and/or definition
8/26/2019
Chapter 1
Introduction to
Law & Legal Systems
What is LAW?
Define Law
◦ Black’s Law Dictionary defines law as “a body of rules of action or conduct prescribed by controlling authority, and having binding
legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.”
What purpose does it serve?
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Keep the peace
Maintain status quo
Preserve individual rights
Protect minorities against majorities
Promote social justice
Provide for orderly social change
Who makes law?
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Legislators
Judges
Administrative agencies
Governors
President
Schools of Legal Thought
Legal Positivism
◦ Recognizes the lawmakers command as legitimate.
◦ How can be know for sure what “natural” or “universal” law is?
Legal Realist/Natural Law
◦ Questions the basis for a law – does it violate natural law
◦ This school of thought focuses on a universal moral order; choosing between good and evil.
Historical School of Law
◦ Believes in basing decisions on past examples
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Common Law
When there is no statute to follow, judges would consider the facts of a case, make a decision
and document the reasoning for that decision. This is how a body of common law came to exist.
Case Precedent – Exists because judges would rely on prior decisions (of similar case facts) and
apply the same rule and reasoning in a current case.
◦ Stare decisis – let the decision stand
Main bodies of common law
◦ Contract Law
◦ Property Law
◦ Torts
The state governments eventually codified criminal laws and some civil laws.
Jurisdiction
Is the power to make and enforce law.
Federal vs. State government
◦ Federal serves as the umbrella for laws in certain areas (banking, environmental, securities,
corporations, healthcare, etc.)
◦ State law under these areas can be more restrictive, but cannot be more broad.
Civil vs Criminal Law
Criminal law – Regulates incidents in which an individual or organization commits acts against
the public.
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Failure to abide by these laws can mean losing your freedom or, in some cases, your life.
State or Federal Government brings the lawsuit
Standard of Proof is beyond a reasonable doubt
Guilty – fine, incarceration or even loss of life
Civil law – Regulates rights and responsibilities implied in relationships between people or
people and their government
◦ Two people or two organizations (or combination of the two)
◦ Standard of Proof is preponderance of evidence in most cases
◦ Guilty of civil laws can mean loss of property or requirement to act.
Both regulate the behavior of individual and entities
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Procedural Laws
How to proceed in the event of a substantive law problem.
14th Amendment of the US Constitution requires that all STATE procedural laws must be fair and not
deprive and individual of “life, liberty or property” without due process of law.
5th Amendment requires that FEDERAL law be procedurally fair.
Example of Procedural Requirements:
To obtain a divorce:
◦ Plaintiff must file summons and complaint or summons with notice
◦ Plaintiff must serve the Defendant within 120 days from filing the summons
◦ Once the Defendant is served, an Affidavit of Service must be filed with the court
Sources of Law
Constitution – Federal and State
Statute and agency regulations
Judicial decisions/Caselaw
Executive Orders
Treaties (international law)
Constitutions
Are the foundation for the nation and the state’s laws.
It is the judicial framework that the citizens and corporations of a state or nation must operate
under.
FEDERAL CONSTITUTION – to amend need 2/3 vote of the House and Senate AND ¾ of the
States to approve.
STATE CONSTITUTION – provides the fundamental rights of its citizens
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Sources of Law
Federal Statutes are laws created by Congress (Schoolhouse rock)
Administrative Agencies – have their own Statutes
State Statutes are created by state legislature (or assembly).
Local laws – ordinances, regulations, codes
Common‐law vs Civil Law
Common law – recognizes and relies on precedent in judicial cases
◦ England and Australia (colony of British Empire) are common law countries
Civil law only relies on the code (their statutes)
◦ Legislature controls change
◦ European civil law covers both criminal and civil laws
Case Brief
Harris v. Forklife Systems, 510 U.S. 17 (1992).
Facts
◦ Parties:
Teresa Harris – Plaintiff/Appellant and
Forklift Systems/Defendant Appellee
◦ Procedural History: Harris was unsuccessful at both the trial and appellate levels. Supreme Court granted
writ of certiorari
Issue: Whether conduct that is to be “actionable as “abusive work environment: harassment, must
“seriously affect [and employee’s] psychological well‐being” or lead to the plaintiff to “suffer injury.”
Holding/Rule: A plaintiff need not prove “seriously affected psychological well‐being” or “suffer
injury”)
Reasoning: Title VII is meant to protect individuals from harm, not after. So long as the environment
would be reasonably perceived and is perceived as hostile or abusive, there is no need for actual
psychological injury.
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8/30/2019
Chapter 2: Corporate Social
Responsibility & Business Ethics
Business Ethics
• Ethics: The study and practice of decisions about what is good and
right.
• Lawful behavior does not always mean ethical
• Business Ethics: Applies ethics to problems or special
circumstances that may arise in the business world.
• These are business standards—not always a set of “correct decisions”
• Ethical Dilemma: A problem about what a person or corporation
should do, when there is no clear right/wrong answer.
Corporate Social Responsibility
• Considers the expectations of the business from the community.
• A corporation’s failure to consider its role in a larger community
and therefore, acts outside of the community’s social norms, may
have adverse affects on the corporation.
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Ethical Perspectives
• Utilitarianism: If the action maximizes happiness or pleasure in society, then it is
the right action. “Greatest good for society”
• Deontoloy: Based on the work of Immanuel Kant – Do you duty and do the right
thing. Believes in following a course of action that would be good for all persons at
all times.
• Must be consistent and reversible
• Social Justice Theory & Social Contract Theory: The fairest way to distribute goods
to a group of people.
• Marxist – Goods should be given according to their needs
• Capitalist – All giving should be voluntary.
• Communitarian: Rights come with corresponding duties.
• Aristotle & Virtue Theory: Emphasizes a person’s virtuous qualities – a person’s
character.
• Josephson’s Core Value Approach.
Josephson’s Core Value Approach
• Trustworthiness
• Respect
• Responsibility
• Fairness
• Caring
• Citizenship
WPH Framework for Business Ethics
Fact Gathering
• WHO are the relevant stakeholders?
• What is the PURPOSE of the decision?
• HOW do we make ethical decisions?
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VALUES
• We turn to values when considering
the reason or purpose for making a
decision.
• Values: Ideals that embody our sense
of what is good or desirable behavior.
•
•
•
•
Freedom
Security
Justice
Efficiency
HOW to make an ethical decision
• Milton Friedman: Main purpose of a corporation is the maximize profits for the
shareholders.
• Stakeholder Theory: Focuses on all of the groups of people who are affected by
a business’ decision. A business cannot just focus on the bottom line, but also
the effect on the community.
• Conscious Capitalism: Combines the shareholder’s interest with the stakeholder
theory – tries to combine and integrate all interests (community, environment,
etc.)
• Golden Rule: Do unto others as you would like them to interact with you.
• Public Disclosure Test: How would the community act. AKA “television test”
• Universalization Test: If others follow my example, would it make the world a
better place?
Hypothetical #1
As the hiring coordinator for ABC, Inc. (ABC), Samantha Jones knew that her position was of
utmost importance to her company in terms of hiring candidates who were well qualified and
who would best contribute to the company’s overall success. On her desk was the employment
application and resume of John Smith. Jones had just finished her interview of Smith, who was
the last in a line of interviewees who had applied for an entry-level information technology (IT)
position at ABC. ABC only had one opening available. During Smith’s interview, the candidate
revealed that seven years ago, he had been tried and convicted in federal court for selling a
significant amount of cocaine. Smith had also revealed the conviction on his employment
application. Smith went to great lengths to explain to Jones that he sincerely regretted the
indiscretions of his youth and that he had spent the last seven years of his life paying penance
and reforming his life. After serving three years in federal penitentiary, Smith had earned his
bachelor’s degree in Information Technology, graduating with honors.
Smith’s interview had gone very well. In fact, Jones felt that in terms of his personality and
education, he was the best fit for the position. Jones was obviously concerned about Smith’s
criminal background, but she was also concerned about the young man should he not find an
employment opportunity after graduating from college. Without a legitimate employment option,
would Smith revert back to his criminal ways?
Does Jones have an ethical obligation to hire John Smith? Should Jones hiring decision be based
exclusively on Smith’s qualifications for the job? Why or why not?
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Class discussion
• What is the best source for creating the code of ethical business:
the individual employee or the business organization itself?
• To what extent should individual employees be allowed to give
their input in the creation of a code of ethics for a business
organization?
• In the event that an individual employee’s ethical standards differ
from his/her employer’s code of ethics, what can/should be done
to resolve those differences?
Group Discussion – Hypothetical #2
• Friedman approach
• Stakeholder approach
• Conscious Capitalism
• Golden Rule
• Public Disclosure Test
• Universalization Test
• Josephson’s Core Value Approach
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9/4/2019
The U.S. Legal
System
State and Federal Court Systems
Legal System Hierarchy
• States and local courts must honor their own state laws, federal law, and other
state’s laws.
• U.S. Constitution’s Supremacy Clause requires when a state law is in conflict with a
federal law, that the state law must honor the federal law.
• States can hear cases that arise from a federal law
• Article IV, Section 1 of the U.S. Constitution’s Full Faith and Credit Clause requires
that each state must respect final judgments of courts from other states.
• Federal must also honor state laws.
• Federal courts may decide cases that have, in addition to a federal law, a state
law issue.
• Also in diversity cases.
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Jurisdiction
• Definition: Comes from latin meaning “to speak”. It is the courts’ ability to
hear cases and make binding decisions on the parties.
• Original vs Appellate Jurisdiction
• Trial courts are courts of original jurisdiction.
• Jury (possibly judge) decides questions of fact (jury vs bench trial)
• Judge advises on the law.
• Appellate jurisdiction reviews trial court decisions
• Will overturn trial court if the trial court’s decision was clearly erroneous or when no
trial evidence supports the trial court’s finding.
In personam jurisdiction
• Jurisdiction over the person. Gives the court the ability to bind an individual by
its decision.
• Must be obtained over the plaintiff and defendant.
• Filing the pleadings by plaintiff binds the plaintiff.
• Pleadings: Summons and complaint
• Proper service of process on the defendant will bind the defendant.
• Traditionally personal service, but different statutes can authorize other methods of
service.
• Corporations – Often serve the president or the appointed agent for service.
• Long-arm statutes: Enable the court to serve out-of-state defendants.
• Requires that the defendant have sufficient minimum contacts within the state.
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In rem & quasi in rem jurisdictions
• In rem jurisdiction enables a court to make a decision that affects a piece
of defendant’s property that is located within the state.
• The property is related to the proceeding.
• Quasi in rem jurisdiction – attachment jurisdiction. Gives the court the
ability to make decisions about defendant’s property that is unrelated to
the proceeding.
Subject matter
jurisdiction
Federal vs. State
• Subject Matter Jurisdiction: Court’s power to hear certain cases.
• U.S. has dual court system.
• Exclusive Federal Jurisdiction: Defined by Article III of the
Constitution
•
Admiralty, bankruptcy, federal criminal prosecutions, lawsuits
between states, claims against the U.S., cases that involve
federal copyright, patent or trademarks, and those matters
involving federal statutes that specify exclusive federal
jurisdiction.
• State Jurisdiction: Broad range of jurisdiction. Has exclusive
jurisdiction over some cases, such as adoption, divorce, or
probate.
• Concurrent Jurisdiction: Both state and federal courts can hear
the case.
•
Federal-question
•
Diversity of Citizenship
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Concurrent Jurisdiction
• Cases of concurrent jurisdiction can be heard by state or federal court.
• Federal-Question cases: Require interpretation of the U.S. Constitution, federal
statute or federal treaty.
• Diversity-of-citizenship cases:
1. Plaintiff and Defendant reside in different states; and
2. The award concerns an amount over $75,000.
• If issues involves either of the above and the plaintiff files in state court,
defendant has the right of removal. The right to remove the case to federal
court.
• WHY one over the other?
VENUE
• Deciding WHICH trial court to hear the case.
• Based on geographic location.
• Usually the venue where (1) the defendant resides, or (2) where the
property at issue is located, or (3) where a particular incident occurred.
• Defendant can request a change of venue if inconvenient.
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Federal Court System
• Federal Trial Courts – Known as district courts. The US has 94 districts, each
with its own court.
• There are also specialty courts that hear certain cases.
• Intermediate Court of Appeals – Also known as Circuit Courts. 12 Circuits in
U.S.
• Supreme Court of U.S.
United States Supreme Court
• Nine Justices make up the current
Supreme Court:
• One Chief Justice and eight Associate
Justices.
• The Honorable John G. Roberts, Jr., is the
17th Chief Justice of the United States, and
there have been 102 Associate Justices in
the Court’s history.
• Each Term, approximately 7,000-8,000
new cases are filed in the Supreme Court.
Approximately 80 are heard with a full
review.
https://www.supremecourt.gov/about/justicecaseload.aspx
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Getting to the Supreme Court
1.
Most uncommon is through the Court’s “original jurisdiction.” “Original jurisdiction” means
that the Supreme Court hears the case directly, without the case going through an
intermediate stage. The original jurisdiction is set forth in the United States Code. The
Supreme Court has original and exclusive jurisdiction to hear disputes between different
states.
2.
The most common way for a case to reach the Supreme Court is on appeal from a circuit
court. A party seeking to appeal a decision of a circuit court can file a petition to the
Supreme Court for a writ of certiorari. “Certiorari” is a Latin word meaning “to inform,” in the
sense that the petition informs the Court of the request for review. The Court will only issue a
writ if four of the nine Justices vote to do so. If four Justices do not agree to grant certiorari,
the petition is denied. If a case is “denied cert”, the decision of the lower court is final.
3.
The third way in which a case can reach the Supreme Court is through an appeal from the
highest court of the state. The Supreme Court will typically grant certiorari in cases where
the state court’s ruling deals with Constitutional issues.
Gerald P. MITCHELL, PETITIONER V. Wisconsin On Writ
Of Certiorari To The Supreme Court Of Wisconsin
[June 27, 2019]
•
Facts: Gerald was arrested for drunk driving after the preliminary breath test was 3x Wisconsin’s legal limit. Gerald was
escorted to the police station where he was too lethargic to be given a more reliable breath test, so he was driven to the
hospital for a blood test. Gerald was unconscious by the time he and the officer reached the hospital. Gerald’s blood was
drawn while unconscious under a state law that presume implied consent for withdrawing blood. He was found guilty and
appeals the use of the blood test as against his 4th Amendment rights.
•
Issue: When a driver is unconscious and cannot give a breath test, can a blood test be conducted without a warrant?
•
Rule: Under the exigent circumstance exception of the 4th Amendment, a warrantless search can be conducted to
“prevent the imminent destruction of evidence.”
•
Holding: A blood test can be conducted without a warrant if an emergency situation exists and it exists when a person is
unconscious.
•
Reasoning: 1) highway safety is paramount public concern; lawmakers believe that BAC limits have had a positive effect on
highway safety and enforcing those limits needs evidence to stand up in court (blood test is a “biological certainty”).
2) Exigent circumstances exists because BAC is dissipating with time. Further a person’s unconscious state IS, in itself,
a medical emergency.
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New York State
Court System
• Trial Court hears all cases. Referred to as the
Supreme Court in NY.
•
Dutchess County Supreme Court is located
at 10 Market Street, Poughkeepsie, NY
• Other trial courts include: County Court,
Surrogate’s Court, Family, Criminal & Civil
Courts (some counties)
•
For example in Dutchess County, criminal
cases are tried at the County Court
•
Second example, NYC has family court, so a
client can select Supreme or Family Court to
obtain a divorce.
• Judges of the Supreme Court are referred to
Justice of the Supreme Court.
New York Appellate
Division – Intermediate
Appeals
•
Appeals from the Supreme
Court (or other lower court) are
heard at a New York Appellate
Division of the Supreme Court.
•
There are four Appellate Courts
in New York, one within each
Judicial Department. They are
assigned to certain counties.
•
Decisions made by the
Appellate Division are binding
on the lower courts within its
Judicial Department.
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New York Court of Appeals
• Highest Court in New York State
• Decisions are binding on all court below it.
• Only certain cases can appeal to NYS Court of Appeals by right (CPLR s.
5601), others must file an application for leave of appeal.
• Appeal by right: When there is a constitutional issue or when two Appellate
judges dissent on a question of law.
• Leave for Appeal – Need permission of Appellate Court or the Court of
Appeals.
Navigating the NYS Court System
The People, Appellant v. Brian Hakes, Respondent
• In December 2012 Brian Hakes, Respondent, pleaded guilty to DWI and aggravated
unlicensed operation of a motor vehicle.
• County Court sentenced him to 6 months prison concurrent with 5 years probation. A
condition of his probation was that he wear and pay for a SCRAM bracelet.
• Defendant stopped paying for the SCRAM bracelet, so it was removed.
• County Court revoked probation and imposed an indeterminate state prison term of 1-3
years. Defendant appealed.
• The Appellate Division (3rd Dept.) reversed the County Court’s judgment by determining
that sentencing courts cannot require a defendant to pay for the costs of electronic
monitoring.
• Leave was granted. Court of Appeals reversed the Appellate Division and held that a
monetary component of a condition of probation is within the County Court’s statutory
authority.
8
9/4/2019
Do I have a case?
• Sara Burns cares deeply for her best friend, Allison Lefevers, even though she does not care for her timidity.
Last month, Lefevers’s coworker Thomas Benfield informed their supervisor that Lefevers had wrongfully
taken hundreds of dollars from the company’s operational account for her own personal use. After an
extensive investigation, the company concluded that Benfield’s allegations were baseless, originating from
ill will between the two co-workers. The company allowed Lefevers to keep her job, and terminated
Benfield for his wrongful conduct.
Burns has encouraged Lefevers to pursue a civil action against Benfield for defamation (even though he
lost his job, Burns has determined that he is far from “judgment-proof”), but Lefevers has politely declined,
saying that she does not want to “fight the fight.” Frustrated with her friend’s lack of fortitude, Burns plans
to file a civil action on behalf of Lefevers, listing her friend as the plaintiff and Thomas Benfield as the
defendant. Should she recover a judgment in favor of her friend, and should execution on the judgment
be successful, Burns will turn any proceeds over to Lefevers.
• Can Sara Burns proceed in a civil action against Thomas Benfield on behalf of her friend Allison Lefevers?
Why or why not?
Do I have a case?
• Standing: When you have a legal right to bring a case to court.
1) Plaintiff must have an injury that is concrete and actual or imminent.
2) The injury must be traceable to the defendant’s action.
3) Must be likely that the injury will be remedied by a favorable decision.
• Case or Controversy: Courts must resolve an issue. They cannot render
advisory opinions
1) Relationship between P and D must be adverse.
2) Actual or threatened actions of one of the parties gives rise to a legal dispute.
3) Courts have the ability to make a decision that will resolve the dispute.
• Ripeness: The judge’s decision can affect the parties immediately.
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Steps in Civil Litigation
• Pretrial Stage: Includes negotiations, pleadings (summons and complaint),
service of process, answer, pretrial motions, discovery (depositions,
interrogatories, document production request), pretrial conference (narrows
down the factual and legal issues, possible settlement).
• Trial: Jury selection, opening statements, witness examinations and presenting
evidence, closing arguments, jury instruction, posttrial motions.
• Appellate Procedure: Requires that a prejudicial error of law occurred during
the trial.
• Must file notice of appeal.
• Appellant must file a brief.
• Oral arguments.
• Decision.
10
ALTERNATIVE
DISPUTE RESOLUTION
Chapter 4
Alternative
Dispute Resolution
Defined: A phrase that encompasses
methods of dispute resolution other than
litigation. These dispute resolutions are
outside the judicial system.
Most common types:
◦ Negotiation
◦ Mediation
◦ Arbitration
Why ADR over Litigation?
◦ Generally ADR is faster than litigation
◦ Generally ADR is less expensive than litigation
◦ ADR often gives the parties more control over the resolution, rather than rely on the
uncertainty of a jury trial.
◦ ADR avoids setting a precedent
◦ ADR is viewed as less adversarial and therefore, can preserve business relationships.
◦ A federal statute that requires parties to
participate in arbitration (or other ADR), if
agreed to in a contract—including on state
level.
◦ Defines a federal policy favoring arbitration.
◦ Potential issues with requiring arbitration (or
other forms of ADR) when two parties agree
to resolve their dispute outside court?
◦ Arbitration Fairness Act (2009): Proposed
legislation to invalidate mandatory arbitration
clauses in employment and consumer
disputes, and civil rights violations.
Federal
Arbitration Act
(FAA)
1. The award was a result of corruption, fraud,
or other undue means.
2. The arbitrator displayed bias or corruption.
3. The arbitrator refused to postpone the
hearing despite sufficient cause, refused to
hear relevant evidence, or otherwise
misbehaved to prejudice the rights of one of
the parties.
4. The arbitrator exceeded his/her authority or
failed to use that authority to make a
mutual, final and definite award.
FAA – When
can an
arbitrator’s
award be set
aside?
Gulf Coast Indus. Workers Union v.
Exxon Co., 70 F.3d 847 (5th Cir. 1995)
Parties:
Gulf Coast Industrial Workers – Plaintiff
Exxon Co. – Defendant
Facts: A drug sniffing dog located a hand-rolled cigarette that looked like it contained marijuana in Chamblin’s car. Exxon asked that
Chamblin take a drug test since the company forbid drug use. Chamblin refused and later suspended and fired. Chamblin was
represented by the union and submitted his case to arbitration. Abitrator said Exxon did not have reason to request Chamblin to take
the drug test because Exxon did not prove the substance was marijuana. The Arbitrator ordered that Chamblin be reinstated with
back pay. Exxon did not comply. Gulf Coast Industrial Workers Union then brought suit against Exxon Company, USA to enforce the
arbitration award. Exxon counterclaimed to have the award set aside.
Issue: Were the arbitration proceedings fundamentally unfair?
Rule: The FAA permits a district court to vacate an arbitration award where the arbitrator(s) were guilty of misconduct in . . . refusing
to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been
prejudiced.
Holding: The Court vacated the arbitral award for arbitral misconduct. when the arbitrator mislead a party into believing that a
document had been introduced into the record without the party needing to submit foundational evidence, but then using the
party’s failure to present the foundational evidence as a basis to ignore the document as hearsay
Reasoning: The arbitrator refused to consider evidence of the positive drug test, and the arbitrator prevented Exxon from presenting
additional evidence by misleading Exxon into believing that the Substance Analysis Report (“SAR”) had been admitted as a business
record. Exxon attempted to establish the SAR as a business record, but the arbitrator stopped them by stating that the test was
already admitted. Further, neither the arbitrator nor the Union objected to the drug tester’s testimony that the cigarette stub found in
Chamblin’s vehicle tested positive for marijuana. The arbitrator used Exxon’s failure to present evidence that he told Exxon not to
present as a predicate for ignoring the test results.
Hypothetical
Todd Eggert was a quality-control supervisor, with the emphasis on was. Last month, his employer, Synergy Mechanical
Controls, Inc., terminated his employment because of Todd’s violation of the company’s attendance policy. With no
employment prospects on the horizon, Todd has considered bringing a wrongful termination action against his former
employer. By his own admission, Todd had indeed violated the company’s attendance policy, but there were at least six
coworkers within his own department who had done the same. All of his coworkers still had their jobs.
Last week, Todd called Synergy’s human resources department, stating he would bring a civil action for wrongful
termination of employment if the company failed to reinstate him. Synergy’s human resources manager, Keith Martin, told
Todd the company would not reinstate him and that he could not pursue a civil action against the company, since all
employees (including Todd) were required to sign a binding arbitration agreement as a condition of employment. Martin
informed Todd that the original, signed arbitration agreement was in his employment file.
Todd is frustrated. He would like to pursue a civil action and he does not believe the binding arbitration agreement is
enforceable, since he believes he was coerced into signing it. After all, the company would have refused to hire him had
he not signed the agreement. Further, Todd is skeptical concerning the fairness of binding arbitration. As part of the
arbitration agreement, the company had reserved the right to select the arbitrator and would compensate the arbitrator
for his services.
◦ What is the likelihood that the arbitrator would decide in Todd’s favor, given the fact that the arbitrator’s check for
services rendered would come from Synergy?
◦ Advise Todd on the enforceability of his binding arbitration agreement with Synergy.
Negotiation
◦ Bargaining process in which the disputing parties attempt to informally resolve their dispute. Lawyers may or may not
be present.
◦ The parties define the terms and solutions. AKA: Party-generated resolutions.
◦ Usually looks like a compromise.
◦ Two types of negotiation:
◦ Adversarial negotiation: The parties seek to maximize their own gain
◦ Problem-solving negotiation: The parties seek joint gain
◦ Drawbacks:
◦ No defined rules (opens the door to unethical negotiations)
◦ No guaranteed resolution
◦ Depending on the parties, there may be unequal bargaining power
◦ Prior to starting a negotiation, it is suggested that each party know their Best Alternative to a Negotiated Agreement
(BATNA) and their Worst Alternative to a Negotiated Agreement (WATNA). Parties should also know their bottom line.
BATNA & WATNA
◦ Your BATNA is the best possible outcome that you feel the case can have for your side
should you fail to reach an agreement at the negotiation table.
◦ Purpose is to understand your alternatives if negotiations are unsuccessful
◦ Gives you an idea of your negotiation power
◦ Provides you with your reservation point (bottom line)
◦ How to determine your BATNA
◦ List all alternatives to the current negotiation – what could you do if negotiations fall through?
◦ Evaluate the value of each alternative – how much is each alternative worth to me?
◦ Select the alternative that would provide the highest value to you (this is your best alternative to
a negotiated agreement).
◦ After determining your BATNA, calculate the lowest-valued deal that you’re willing to accept
(WATNA).
Mediation
◦ Is like an extension of negotiation since it is also party-centered and focuses on
party-generated solutions. Requires voluntary party participation.
◦ The parties select a third-party neutral to assist with negotiations.
◦ Third-party neutral is usually trained on conflict resolutions – various types of
training. i.e./
◦
◦
◦
◦
Directive
Transformative
Understanding-based
Evaluative
◦ Mediators are available through non-profits and through private sources.
Mediation continued
◦ Advantages to Mediation
◦ Preserve parties’ relationship
◦ Potential for creative solutions
◦ High level of autonomy
◦ Disadvantages to Mediation
◦
◦
◦
◦
◦
If parties are unwilling to participate, the process will not work.
May end the process without a resolution
Agreements are not binding, unless incorporated into a legally binding contract.
Gives the view of equity, but is not always so.
May also be viewed as a delay tactic
Arbitration
◦ ADR method where a third-party neutral hears the facts and evidence of a case and
evidence and issues a decision (arbitration award).
◦ Arbitrator’s decisions are not binding precedent, but may be binding on the parties.
◦ An arbitration award can be converted into a judgment so that the successful party
may enforce the decision. (Contemplation)
◦ Most states adopted Uniform Arbitration Act
◦ NY’s rules of arbitration are located in their Rules of Civil Procedure (Article 75)
◦ NY enacted law that banned mandatory arbitration with harassment and
discrimination cases. Southern District of NY overturned this decision by citing to the
FAA.
◦ Let’s review a credit card agreement.
Latif v. Morgan Stanley & Co., 18cv11528
(DLC) (S.D.N.Y June 25, 2019)
Parties: Plaintiff-Mahmoud Latif
Defendant- Morgan Stanley
Facts: New York first enacted its ban on mandatory arbitration of sexual harassment claims in 2018 as part
of the 2019 State Budget. The statute amended the New York Civil Practice Law and Rules (“CPLR”) to
prohibit contracts requiring the submission of sexual harassment claims to mandatory binding arbitration. In
June, New York expanded this prohibition to mandatory arbitration of all harassment claims.
Plaintiff Mahmoud Latif signed an agreement providing that “statutory discrimination, harassment, and
retaliation claims” would be resolved in “final and binding arbitration.” Latif alleges that he was subjected
to sexual harassment and was eventually terminated in retaliation for complaining about the alleged
harassment. Latif relied on NY’s CPLR § 7515 in his opposition to the defendant’s motion to compel
arbitration of his sexual harassment claims.
Issue: Is NY’s prohibition of mandatory arbitration of harassment claims preempted by the FAA?
Rule: States cannot pass conflicting laws
Holding: NY’s law is preempted and therefore, unenforceable.
Reasoning: Federal law preempts state law and NY’s law did not fall into any of the FAA exceptions.
Arbitration continued…
◦ Advantages of Arbitration
◦ Generally more efficient than litigation
◦ Generally less expensive than litigation
◦ Parties have more control over the process and can determine how formal the process will be
◦ Ability to select the arbitrator – can be someone with experience in the field.
◦ Arbitrator has greater flexibility in decision making.
◦ Disadvantages of Arbitration
◦ Becoming so popular scheduling conflicts are arising and the cost is increasing
◦ Some scholars argue that more injustice is likely to occur since appealing an arbitration award
is so difficult.
◦ Concerns about losing civil rights by agreeing to arbitrate.
◦ Concern about more and more use of arbitration that it will become more like litigation.
Hypothetical
Law student and New York resident Cecilia Newcomb found herself frustrated when she tried to transfer
Broadway show tickets she’d purchased electronically from ticketing giant Top Ticket to a friend. The
theater in question, Broadway West, had listed the tickets as non-transferable, so Newcomb’s tickets went
unused, and she was out $500.
Newcomb decided to file a suit against Broadway West, as she believed that the nontransferable rule was
a violation of the New York Arts and Cultural Affairs law, which prevents venues from selling electronic
tickets that cannot be transferred to other holders. Broadway West argued that since the tickets were sold
by Top Ticket, which in its Terms of Use agreement requires all ticket purchasers to agree to binding
arbitration, Newcomb’s beef was with Top Ticket, not Broadway West, and that she should seek redress
from Top Ticket through arbitration.
•
Do you believe that Newcomb has a case?
•
Research the New York Arts and Cultural Affairs law. If you think that either Broadway West or Top Ticket
is in violation of the law, which is at fault? Why?
•
Does Broadway West have a reasonable case that Newcomb should abide by the Top Ticket Terms of
Use?
•
Last, why did Newcomb opt for a lawsuit over binding arbitration, no matter which company she
brought the complaint against? Would you make the same decision? Why or why not?
Med-Arb: Mediation followed by Arbitration, if
mediation is unsuccessful.
Other
Methods of
ADR
Private Judging: Hiring a judge to preside over a
private trial.
Minitrial: Presentation of case to a decisionmaker following discovery.
Summary Jury Trial: mock trial presented to a
jury with non-binding verdict.
Early Neutral Evaluation: Neutral third party
evaluates the strengths and weaknesses of the
case. Used to facilitate settlement.
The U.S.
Constitution
Chapter Goals

Define federalism.

Explain how the U.S. government’s system of checks and balances
operates.

Evaluate the effects of the commerce clause on the government’s
regulation of business.

Recognize how the Bill of Rights protects the citizens of the United
States.
The U.S. Constitution

The U.S. Constitution sets the framework for the nation’s government
and divides the creation of laws between the states and federal
government.

The U.S. Constitution is based on the principle of federalism.

Where the authority to govern is split between the states and the
federal government.

Police Powers- the residual powers retained by the States to govern

10th Amendment defines the powers that are delegated to the Federal
Government.


Allocated to three branches:

Legislative

Executive

Judicial
Three branches were created to form a system of checks and balances.
Checks and Balances System
Supremacy Clause
Article IV of the U.S. Constitution


The Supremacy Clause provides that the federal government’s laws
constitute “the supreme law of the land.”

Any conflicting law is void.

Two types of preemption:

Implied – Has Congress “occupied the field” in which the state is attempting
to regulate OR does the state law directly conflict OR will enforcement of the
law frustrate the federal law’s purpose

Field – when the federal government specifically states that they regulate the
area exclusively.
There are areas where the federal and state governments have
concurrent authority.
Implied Preemption
Pennsylvania v. Nelson, 350 U.S. 497 (1956)

Facts: Steve Nelson was an acknowledged leader of the Communist Party in Pennsylvania.
He was convicted of advocating to overthrow the government under the PA Sedition Law.
The Pennsylvania Sedition Act made it illegal for someone advocating the overthrow of the
government. The Smith Act, 18 U.S.C. § 2385, also prohibits the knowing advocacy of the
overthrow of the Government of the United States by force and violence.

Rule: Is the federal law so pervasive that there is “no room” left for state regulation?

Holding: The Pennsylvania sedition law was unconstitutional because the offense in
question was preempted by an existing federal law

1. The scheme of federal regulation is so pervasive as to make reasonable the inference
that the Congress left no room for the States to supplement it. Pp. 350 U. S. 502-504.

2. The federal statutes touch a field in which the federal interest is so dominant that the
federal system must be assumed to preclude enforcement of state laws on the same
subject. Pp. 350 U. S. 504-505.

3. Enforcement of state sedition acts presents a serious danger of conflict with the
administration of the federal program
Douglas v. Seacoast Products, Inc.,
431 U.S. 265 (1977)

Facts:
Virginia statute prohibit nonresidents of Virginia from catching menhaden
in the Virginia portion of Chesapeake Bay and bars noncitizens (regardless of where
they reside) from obtaining commercial fishing licenses for any kind of fish from
Virginia.

The federal government has enrollment and licensing laws, under which vessels
engaged in domestic or coastwise trade or used for fishing are “enrolled” for the
purpose of evidencing their national character and to enable them to obtain
licenses regulating the use to such vessels.

Issue: Is the VA law preempted by the federal law.

Holding: Supremacy Clause preemps the Virginia law.

Reasoning: (1) A state cannot issue a discriminatory regulation of shipping as applied
to vessels federally licensed to engage in the coasting trade. (2) The federal license
does not merely establish the nationality of the vessel, but “implies, unequivocally, an
authority to licensed vessels to carry on” the activity for which they are licensed.” (3)
The Virginia statute, by prohibiting federally licensed vessels owned by nonresidents
of Virginia from fishing in Chesapeake Bay and by not allowing such ships owned by
noncitizens to catch fish anywhere in the Commonwealth, deny licensees their
federally granted right to engage in fishing activities on the same terms as state
residents
Commerce Clause
Article 1, Section 8

The U.S. Congress has the power to “regulate Commerce with
foreign nations, and among the several States, and with the Indian
Tribes.”

Any law passed under the Commerce Clause, must have a “close
and substantial relationship to interstate commerce” in order to be
constitutional.


Generally, a state law that has the purpose to (1) regulate interstate
commerce, or (2) discriminate against interstate commerce will be
deemed unconstitutional and void.
Dormant Commerce Clause – If a state passes a law that is an
undue burden or discriminates against interstate commerce, then it
may be considered unconstitutional.
Constitutional Powers

Taxing & Spending Power (Article 1, Section 8): Constitution also
grants the federal government the authority to impose and collect
taxes.

Must be uniform throughout all 50 states.

Contract Clause (Article I, Section 9): Government cannot pass a
law that will unreasonably interfere with the ability to contract.

Full Faith & Credit Clause (Article IV, Section 1): States must uphold
contracts and judgments made in other states.

Privileges and Immunities Clause (Article IV, Section 2): States
cannot discriminate against citizens of other states.
Taxing & Spending Power

National Federation Of Independent Business V. Sebelius, Secretary
Of Health And Human Services, (U.S. 2012)

Facts: In 2010, Congress enacted the Patient Protection and
Affordable Care Act in order to increase the number of Americans
covered by health insurance and decrease the cost of health care.
One key provision is the individual mandate, which requires most
Americans to maintain “minimum essential” health insurance
coverage. 26 U. S. C. §5000A. For individuals who are not exempt,
and who do not receive health insurance through an employer or
government program, the means of satisfying the requirement is to
purchase insurance from a private company. Beginning in 2014,
those who do not comply with the mandate must make a “[s]hared
responsibility payment” to the Federal Government. §5000A(b)(1).
The Act provides that this “penalty” will be paid to the Internal
Revenue Service with an individual’s taxes, and “shall be assessed
and collected in the same manner” as tax penalties.
Taxing & Spending Power
continued





National Federation Of Independent Business V. Sebelius, Secretary Of Health And Human Services, (U.S. 2012)
Issue: May the federal government penalize individuals for failure to get health insurance?
Rule: Commerce Clause? (regulating interstate commerce?)
Taxing & Spending Power?
Holding:
Commerce Clause: No
Taxing & Spending: Yes
Reasoning:
Commerce Clause: The power to regulate commerce presupposes the existence of commercial activity to be
regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope
of the commerce power have been, they uniformly describe the power as reaching “activity.” The individual
mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in
commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Framers
did not intend to tell people what they MUST do, but regulate what to CANNOT do.
Taxing & Spending Power: Though it was labeled a penalty, the characterized it as a tax and therefore, must still
comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before directed to be taken.” BUT a reasoned that a “tax” on going
without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not
be apportioned so that each State pays in proportion to its population.
Contract Clause

Three-part test for whether a law conforms with the Contract Clause in Energy
Reserves Group v. Kansas Power & Light.

First, the state regulation must not substantially impair a contractual relationship.

Second, the State “must have a significant and legitimate purpose behind the
regulation, such as the remedying of a broad and general social or economic
problem.”[

Third, the law must be reasonable and appropriate for its intended purpose.

Example: The state of Kansas regulated the price of natural gas sold in the
intrastate market. It prohibited natural gas producers from charging higher
prices even if the federal government set higher prices.

Price regulation existed and was foreseeable at the time of contracting.
Therefore, the Kansas law did not impair Petitioner’s contractual expectations.
Also, the state has a legitimate interest in correcting any discrepancy between
the interstate and intrastate markets.
Full Faith & Credit Clause

States must uphold contracts and judgments made in other states.

Example: Idaho issues a warrant for the arrest of Tim Gun. If the arrest
warrant is transferred to Michigan for execution, Michigan cannot
intentionally ignore the warrant.


Exception: If the rule violates public policy in that state.
Hypothetical: Jack sues Mary in Kansas for losses suffered as a result
of her fraudulent business practices. The court rules in favor of Jack
and issues a judgment against Mary for $500,000. Instead of paying
the judgment, Mary goes to Texas and resumes her business
practices. If Jack attempts to collect the judgment against Mary,
does Texas have any obligation regarding the recognition and
enforcement of the judgment?
Privileges & Immunities Clause

States cannot discriminate against
citizens of other states.

Example: The state of Florida sets a
sales tax of 7% on non-food items
purchased within the state. Because
Florida is a major hub of tourism in
the United States, the state decides
to charge a higher sales tax rate of
8% for non-Florida residents. While
the state has a right to set taxes
within its boundaries, the Privileges
and Immunities Clause prohibits
treating people who do not reside in
the state any differently. In this
example of the Privileges and
Immunities Clause, that includes
taxation.
Constitutional
Amendments
Bill of Rights: First ten
Amendments to the
Constitution. They prohibit
the federal government
from infringing on personal
freedoms.
Applies to both STATE and
FEDERAL governments.
Note: Does not limit actions
in the private sector.
First Amendment
Freedom of Speech & Assembly

Guarantees freedom of speech
and press.

Prohibits preventing the right to
peacefully assemble and petition
the government for restoration.

Prohibits the government from
aiding with the establishment of
religion and interfering with the
free exercise of religion.

Political Speech – protected for
individuals and corporations.
Highest level of protection.

Commercial Speech – Conveys
information about the sale of
goods and services. Any restriction
must pass Central Hudson test.

Unprotected Speech – Lewd and
obscene, profane, libelous and
insulting/fighting words
Unprotected Speech

Libelous speech – Speech that will harm the reputation of another



Truth is a defense
Obscene speech – does it fit in the 3-part test:

Would the average person find that the speech appeals to the prurient
interested (marked by or arousing an immoderate or unwholesome
interest or desire)?

Does the speech depict or describe, in a patently offensive way, sexual
conduct specially defined by law?

Does the speech, as a whole, lack literary, artistic, political or scientific
value?
Fighting words: Words that are likely to provide the average person
to retaliation and therefore, breach the peace.
Freedom of Religion

Establishment Clause: “government shall make no law respecting an establishment of religion.”

Three-prong test:

Does the statute have a secular legislative purpose?

Does the statute’s principal or primary effect either advance or inhibit religion?

Does the statute foster an excessive government entanglement with religion?

Lemon v. Kurtzman (1971)
Issue: Whether a Pennsylvania law reimbursing religious schools with state funds for textbooks and
teacher salaries for non-public, non-secular schools violated the Establishment Clause of the First
Amendment.

In an 8-0 decision, the Court set out a three-pronged (above) On this basis, the Court struck down
the Pennsylvania law as in violation of the Establishment Clause, finding that the statute
constituted an excessive government entanglement with religion.

Wisconsin v. Yoder (1972)
Issue: Whether the state of Wisconsin’s requirement that all parents send their children to school at
least until age 16 violated the First Amendment by criminalizing the conduct of parents who
refused to send their children to school for religious reasons.

In their unanimous decision, the Court ruled that Amish adolescents could be exempt from the
state law requiring school attendance for all 14 to 16-year-olds, because their religion required
living apart from the world and worldly influence. The state’s interest in having students attend 2
additional years of school did not outweigh the individual’s right to free exercise of religious belief.
Freedom of Religion

Free-exercise Clause: The government cannot make a law that prohibits a person’s
free exercise of religion.

Burwell v. Hobby Lobby, 573 U.S. ___ (2014)

Facts: The Green family owns and operates Hobby Lobby Stores, Inc., a national arts
and crafts chain with over 500 stores and over 13,000 employees. The Green family
has organized the business around the principles of the Christian faith and has
explicitly expressed the desire to run the company according to Biblical precepts,
one of which is the belief that the use of contraception is immoral. Under the Patient
Protection and Affordable Care Act (ACA), employment-based group health care
plans must provide certain types of preventative care, such as FDA-approved
contraceptive methods. While there are exemptions available for religious employers
and non-profit religious institutions, there are no exemptions available for for-profit
institutions such as Hobby Lobby Stores, Inc.

Issue: Is the contraceptive mandate of the ACA a violation of Hobby Lobby’s free
exercise of religion?

Holding: Yes, the mandate was a violation of Hobby Lobby’s free exercise of religion.

Reasoning: Because the contraception requirement forces religious corporations to
fund what they consider abortion, which goes against their stated religious principles,
or face significant fines, it creates a substantial burden that is not the least restrictive
method of satisfying the government’s interests.
Fourth Amendment
Freedom from Unreasonable Search & Seizures

Guarantees a citizen’s right to be “secure in their persons, their
homes, and their personal property.”

A search is unreasonable if there is no search warrant from the
court.

There are exceptions
1.
Search incident to arrest
2.
Exigent circumstances
3.
Open Fields
4.
Motor Vehicle
Fifth Amendment

Includes the right against self-incrimination. Does not include corporations,
unless it is a sole proprietorship.

Protects against double jeopardy

Due Process – cannot deprive a person of life, liberty or property without due
process of law.

Includes procedural and substantial due process.

Procedural Due Process: Notice of any legal action and a hearing with an impartial
tribunal.

Substantive Due Process: There must be a proper purpose for passing a law if it will affect
a fundamental right.

Takings Clause – Protects against uncompensated takings of private property for
public use.

Two-tiered analysis
1.
Legislation on economic matters, employment relations and other business affairs are
subject to minimal judicial scrutiny
1.
2.
Must serve a rational government basis
Legislation concerning fundamental liberties is subject to heightened judicial scrutiny.
1.
Must be “narrowly tailored to serve a significant government purpose”
Miranda v. Arizona, 384 U.S. 436 (1966)


Parties: Miranda – Defendant
ArizonaFacts: Miranda was arrested at his home and taken in custody to a police station where he was identified
by the complaining witness. He was then interrogated by two police officers for two hours, which resulted
in a signed, written confession. At trial, the oral and written confessions were presented to the jury.
Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on
each count. On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not
violated in obtaining the confession.
Issue(s): 1. Whether “statements obtained from an individual who is subjected to custodial police
interrogation” are admissible against him in a criminal trial and
2. whether “procedures which assure that the individual is accorded his privilege under the Fifth
Amendment to the Constitution not to be compelled to incriminate himself”

Rule: 5rg Amendment prohibits self incrimination.

Holding: “The prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.”


Reasoning : “Without proper safeguards the process of in-custody interrogation of persons suspected or
accused of crime contains inherently compelling pressures which work to undermine the individual’s will
to resist and to compel him to speak where he would otherwise do so freely.” Therefore, a defendant
“must be warned prior to any questioning that he has the right to remain silent, that anything he says can
be used against him in a court of law, that he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
Kelo v. City of New London, 545 U.S.
469 (2005)

Facts: New London, a city in Connecticut, used its eminent domain authority to seize
private property to sell to private developers (Pfizer). The city said developing the
land would create jobs and increase tax revenues. Susette Kelo and others whose
property was seized sued New London in state court. The property owners argued the
city violated the Fifth Amendment’s takings clause, which guaranteed the
government will not take private property for public use without just compensation.
Specifically, the property owners argued taking private property to sell to private
developers was not public use. The Connecticut Supreme Court ruled for New
London.

Issue: Does a city violate the Fifth Amendment’s takings clause if the city takes private
property and sells it for private development, with the hopes the development will
help the city’s bad economy?

Holding: That the city’s taking of private property to sell for private development
qualified as a “public use” within the meaning of the takings clause.

Reasoning: The court reasoned that the city was not taking the land simply to benefit
a certain group of private individuals, but was following an economic development
plan and should be given deference. The takings here qualified as “public use”
despite the fact that the land was not going to be used by the public. The Fifth
Amendment did not require “literal” public use, the majority said, but the “broader
and more natural interpretation of public use as ‘public purpose.’
Fourteenth Amendment
Equal Protection Clause

Equal Protection Clause prevents states from denying citizens “equal
protection of the laws.” Meant to eliminate government discrimination.

Three standards of scrutiny apply:

Strict scrutiny – if the classification includes suspect classifications (race,
national origin and citizenship)


Intermediate scrutiny – if the classification is based on gender or legitimacy
of children.



The law will only be upheld if it is necessary to promote a compelling state interest
Upheld if the law is substantially related to an important government objective.
Craig v. Boren, 429 US 190 – 1976
Rational-basis test – All other matters

Law is upheld if there any justifiable reason that the law will advance a legitimate
government interest.
Brown v. Board of Education, 347
U.S. 483 (1954) – Strict Scrutiny

Facts: This case was the consolidation of cases arising in Kansas, South Carolina,
Virginia, Delaware, and Washington D.C. relating to the segregation of public
schools on the basis of race. In each of the cases, African American students
were denied admittance to certain public schools based on laws allowing
public education to be segregated by race.

The plaintiffs were denied relief in the lower courts based on Plessy v. Ferguson,
which held that racially segregated public facilities were legal so long as the
facilities for blacks and whites were equal. (This was known as the “separate but
equal” doctrine.)

Issue: Does the segregation of public education based solely on race violate
the Equal Protection Clause of the Fourteenth Amendment?

Holding/Reasoning: Unanimous Court—yes. Separate but equal educational
facilities for racial minorities is inherently unequal, violating the Equal Protection
Clause of the Fourteenth Amendment.
The Court reasoned that the segregation of public education based on race
instilled a sense of inferiority that had a hugely detrimental effect on the education
and personal growth of African American children.
Loving v. Virginia, 897 U.S. 113 (1967)
Strict Scrutiny

Facts: In 1958, two residents of Virginia, Mildred Jeter, a black woman, and
Richard Loving, a white man, were married in the District of Columbia. The
Lovings returned to Virginia shortly thereafter. The couple was then charged with
violating the state’s antimiscegenation statute, which banned inter-racial
marriages. The Lovings were found guilty and sentenced to a year in jail (the trial
judge agreed to suspend the sentence if the Lovings would leave Virginia and
not return for 25 years)

Issue: Did Virginia’s antimiscegenation law violate the Equal Protection Clause
of the Fourteenth Amendment?

Holding: Unanimous court: Yes, it did.

Reasoning: The Court held that distinctions drawn according to race were
subject to “the most rigid scrutiny” under the Equal Protection Clause. The
Virginia law, the Court found, had no legitimate purpose “independent of
invidious racial discrimination.” The Court rejected Virginia’s argument that the
statute was legitimate because it applied equally to both blacks and whites.
“Under our Constitution,” wrote Chief Justice Earl Warren, “the freedom to marry, or
not marry, a person of another race resides with the individual, and cannot be
infringed by the State.”
Craig v. Boren, 429 US 190 (1976)
Intermediate Scrutiny

Facts: An Oklahoma law prohibited the sale of beer with 3.2% (“nonintoxicating”) alcohol content to males under age 21 while permitting
the sale of such low-alcohol beer to females over the age of 18

Issue: Did an Oklahoma statute violate the 14th Amendment’s Equal
Protection Clause by establishing different drinking ages for men and
women?

Holding: Yes, the Court held that the statute made unconstitutional
gender classifications.

Reasoning: The Court established a new standard for review in gender
discrimination cases. It is more demanding than the rational basis
standard, but less demanding than strict scrutiny. The Court found that
Oklahoma did not have sufficient evidence to support their objective.
Tort Law
CHAPTER 6
Hypothetical Case 1
•
When Sylvia Wood talks, people listen. As a talk-show host with her own nationally
syndicated television program, The Sylvia Show, Wood reaches approximately 30 million
viewers each week. Her dedicated viewers are collectively referred to as “Sylvia’s Militia,”
and most wait breathlessly for Wood’s on-air blessings of products, people, and books.
One of her recent programs has Wood in hot water. Wood devoted her September 30
episode to a food-borne illness commonly referred to as the “crazy chicken” disease.
During the past two years, approximately fifty people in the United States have
developed physical symptoms after eating undercooked, diseased chicken. Apparently,
chickens have developed the disease after eating substandard feed, and consumers
have been affected down the food chain. Common symptoms include muscle
contractions, nausea, and diarrhea.
During the September 30 episode of The Sylvia Show, Wood interviewed a medical
doctor, Dr. Tyson Fowler, who said that in his opinion, chicken was not safe for human
consumption. In response, Wood had said “Dr. Fowler, if that is the case, I will never eat
chicken again.“
Hearing of this episode, the United Poultry Growers Association sued Wood and The Sylvia
Show, claiming commercial disparagement (the commercial equivalent of defamation).
•
Are the defendants Wood and The Sylvia Show liable for commercial disparagement?
© 2020 McGraw-Hill Education.
Defining a Tort

A wrong or injury to another for which the law
will provide a remedy.

Tort law is meant adjust for harms done by
awarding damages to a plaintiff that can
demonstrate the defendant was the cause of
plaintiff’s losses.

Tort is based on the idea that actions of
individuals, alone or in concert with others,
should not negatively impact third-parties.

If a third party is injured by a person’s actions,
then tort law will try to compensate that third
party for any harm caused.
© 2020 McGraw-Hill Education.
Purposes of Tort Law
•
•
•
•
Compensate
innocent injured
persons.
Prevent private
retaliation by
injured parties.
Reinforce vision
of a just society.
Deter future
wrongs.
Classification of Torts

Intentional torts: Arise from Defendant’s
intentional acts. It’s when the Defendant takes
action(s) intending certain consequences or
knowing the consequence is a likely to result of
Defendant’s actions.

Negligent torts: Occur when defendant acts in
a way that subjects other people to
unreasonable risk of harm.

Strict-liability torts: Occur when defendant takes
action that is inherently dangerous and cannot
ever be undertaken safely.
© 2020 McGraw-Hill Education.
Continuum of Fault under
Tort Law
Intentional Tort
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Strict liability
Dimensions of Tort Liability
1.
Fault
2.
Nature of Injury
3.
Excuses
4.
Damages
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Fault
1.
FAULT: Tort Law focuses on standards of fault, the
blameworthiness of the defendant.
a.
Intentional conduct (intentional tort). Intentional
torts may also be a criminal offense.
i.
What are the differences between criminal and
intentional tort offenses?
b.
Negligent conduct – where a person acts in a
careless manner or poses an unreasonable risk
causing damage.
c.
Strict Liability – A defendant can be held
responsible for injuries to a third-party, even if all
possible precautions have been taken.
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Nature of Injury

Liability will depend on the nature of the injury
suffered by the plaintiff.

Example injuries:

Physical Injury

Mental suffering

Property damage (includes economic interests)
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Defenses

Defenses: An excuse for committing wrong doing.
May result in the defendant not being or being
less responsible for plaintiff’s injuries.

Assumption of risk

Negligence of Plaintiff

Contributory or Comparative Negligence

Consent

Force of Nature
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Damages

Damages are usually measured by the extent of
the injury.

Tort damages are usually limited to compensatory
damages.

Types of Damages:

Compensatory: Damages for loss of property,
wages, medical expenses, etc.

Punitive: Purpose of punitive damages is the punish
the defendant and serve as a deterrent for others
from acting similarly.

Usually only in aggravated situations. Such as when
defendant acts with malicious intent or acts
outrageously.
© 2020 McGraw-Hill Education.
Intentional Torts

Are based on defendant’s intentional conduct.

All share the common element of intent.


Intent does not mean harm, but the intent to
engage in a specific act that results in an injury
(physical or economic)
Includes:

Torts Against a Person

Torts Against Property

Torts Against Economic Interest
© 2020 McGraw-Hill Education.
Common Intentional Torts
against Persons
Assault.
 Battery.
 False imprisonment.
 Defamation




published, libel;
spoken, slander).
Invasion of privacy




false light,
public disclosure of private facts,
appropriation for commercial gain, and
intrusion on an individual’s affairs or seclusion
Intentional infliction of emotional distress.
 Misuse of legal procedure.

© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Assault & Battery



Assault defined:
1.
The threat of immediate harm OR offensive
contact; OR
2.
Any act that would arouse reasonable
apprehension of imminent harm
Battery defined: Unauthorized and harmful or
offensive physical contact with another person that
causes injury.
Doctrine of Transferred Intent: “If a person
intentionally directs force against one person wrongfully
but, instead, hits another, his intent is said to be
transferred from one to the other and he is liable to the
other though he did not intend it in the first instance.”
Blacks Law Dictionary
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Defenses Battery
Intent. Torts Against Persons
False Imprisonment

Defined: When a person is confined or restrained
against his/her will for a period of time.

It is the deprivation of personal freedom without
cause.

Imprisonment may occur by the following means:

Physical restraint

Physical force

Threat to use immediate force

Refusal to release plaintiff’s property
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Defamation


Defined: The (1) intentional publication
(communication to a third party) of a (2) false
statement (3) harmful to an individual’s
reputation. 2d Restatement of Torts

Slander: if the communication was done through
spoken word

Libel: if the communication was published in written
form.
Applies to living individuals and corporations.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Defamation Defenses
Truth
 Absolute Privilege – statements stated during the
course of a judicial proceeding cannot be the
subject of a defamation claim.



Judicial Proceeding:

Trial

House & Senate Floors during congressional debate
Qualified Privilege – A statement made in a
reasonable manner for a reasonable purpose may
not be actionable.

Statement made without malice (knowing it was false
or reckless disregard for the truth)

Includes statements made regarding government
officials and public figures.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Invasion of Privacy

Right to privacy: Right “to be let alone”

False light – Occurs when publicity about a person
creates an impression about that individual that is not
valid.


Public disclosure of private facts – when someone
publicizes a private fact about another that a
reasonable person would find highly offensive.


Defense: individual waived his/her right to privacy
Appropriation of Name or Likeness for commercial gain –
Occurs when someone uses another person’s name,
likeness, voice or other identifying characteristic for
commercial gain.


Defense: Qualified Privilege (public figure)
Defense: Obtained the individual’s written consent
Intrusion on an individual’s affairs or seclusion – occurs
when Someone invades a person’s solitude, seclusion or
personal affairs.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Intentional Infliction of
Emotional Distress (IIED)

IIED occurs when someone engages in outrageous,
intentional conduct that is likely to cause extreme
emotional distress to another party.

There must usually be some physical manifestation of
emotional distress.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Malicious Prosecution

Occurs when an individual causes someone to be
prosecuted for a criminal act, knowing that there
was no probable cause to believe that the plaintiff
committed the crime.

Tort seeks to compensate the plaintiff for damages for
legal fees related to the improperly brought litigation,
harm to reputation, credit or standing as a result of
the false claim(s); and any emotional distress caused
by the improper litigation.

Criminal proceeding must terminate in favor of
plaintiff.

Plaintiff must show that defendant (1) filed suit for an
improper purpose; and (2) had no reasonable belief
that the cause of action was legally or factually well
grounded.
© 2020 McGraw-Hill Education.
Intentional Torts against
Property
•
Trespass to realty.
•
Trespass to personal property.
•
Conversion.
•
Private nuisance.
© 2020 McGraw-Hill Education.
Intent. Torts against Property
Trespass


Trespass to Realty: Occurs when a person
intentionally
1.
Enters the land of another without permission;
2.
Causes an object to be placed on the land of
another without the landowner’s permission;
3.
Stays on the land of another when the owner tells
him to depart; or
4.
Refuses to remove something he placed on the
property the landowner asked him to remove.
Trespass to Personal Property: When a person
temporarily exerts control over another’s personal
property or interferes with the owner’s right to
enjoy it.
© 2020 McGraw-Hill Education.
Intent. Torts against Property
Conversion & Private Nuisance

Conversion: When a person permanently removes
personal property from the owner’s possession and
control.

Private Nuisance: When a person uses her property
in an unreasonable manner that harms a
neighbor’s use or enjoyment of property.
© 2020 McGraw-Hill Education.
Intentional Torts against
Economic Interests
Disparagement.
Intentional
interference with
contract.
Unfair
competition.
Misappropriation.
Fraudulent
© 2020 McGraw-Hill Education.
misrepresentation.
Intentional Torts against
Economic Interests

Disparagement: Plaintiff must prove that defendant (1)
published a false statement about plaintiff’s product or
service that (2) resulted in loss of sales.


Damages are usually for loss of sales
Intentional Interference with Contract: Requires
1.
Valid and enforceable contract between plaintiff and
third party;
2.
Defendant knew of the existence of this contract;
3.
Defendant intentionally undertook steps to cause one
party to breach the contract; and
4.
Plaintiff was injured as a result of the breach.

Damages: Loss from the breached contract, emotional distress
and harm to reputation.
© 2020 McGraw-Hill Education.
Intentional Torts against
Economic Interests

Unfair Competition: When a company enters an
industry with the sole intent of driving another firm
our of business.

Misappropriation: Using another’s name/likeness,
voice for commercial gain. See torts against a
person

Fraudulent Misrepresentation: Occurs when a party
uses intentional deceit to facilitate personal gain
from another who relies on the deception.
© 2020 McGraw-Hill Education.
© 2020 McGraw-Hill Education.
Damages Available in Tort
Cases
Damages are usually measured by the extent
of the injury.
 Compensatory damages: Designed to
compensate the victim for all the harm caused
by the person who committed the tort (puts
plaintiff in same position he/she would have
been in had tort not occurred).
 Nominal damages: A minimal amount that
signifies defendant’s behavior was wrongful,
but caused no harm.
 Punitive damages: Damages that punishes
defendant and seek to deter such conduct in
the future.

© 2020 McGraw-Hill Education.
Hypothetical 2
•
Regina Farrow worked for Door Chime Industries for 35 years,
and her colleagues decided to throw a party in her honor.
Farrow had long been the person in her office who was the
first to celebrate and acknowledge her colleagues’
birthdays, anniversaries, engagements, and new babies, so
they wanted to make the party a surprise—a party that, for
once, she didn’t have to plan.
All the planning went off without a hitch, and Farrow didn’t
suspect a thing. When she was called into the office on a
Saturday afternoon unexpectedly, she became worried that
something was very wrong. As she opened the door, her
colleagues jumped out and yelled, “Surprise!” Just like that,
Farrow dropped dead of a heart attack.
•
Farrow’s family is devastated and plans a lawsuit against the
company and the individuals who planned the party. Is this
situation an intentional tort? Why or why not?
© 2020 McGraw-Hill Education.
Negligence
Behavior that creates an unreasonable risk of
harm to others; the failure to exercise
reasonable care to protect another’s person
or property.
Elements of negligence.

Duty: The standard of care a reasonable person owes
another (reasonable person standard).

Breach of duty: Failure to live up to the standard of care.

Causation: Actual cause and proximate cause.

Damages: A compensable loss suffered by plaintiff.
© 2020 McGraw-Hill Education.
Hypothetical 3

William “Bill” Lane and Robert “Bo” Gutierrez are owners
of Bill-Bo Bowling Balls, Inc., a small bowling ball
manufacturing company located in Topeka, Kansas.
One day, while walking on the public sidewalk
immediately adjacent to the Bill-Bo Bowling Balls
building, a bowling ball fell on Richard Weber, causing
severe (but fortunately, non-fatal) injuries to Weber. A
sole witness, Anne Marie Norton, saw the bowling ball
fall from a second-story window of the building and
strike Weber, but she was not able to identify the
perpetrator.

Weber’s attorney, Samuel Pettibone (“S.P.”) Ayre, has
filed a lawsuit listing Lane, Gutierrez, and Bill-Bo Bowling
Balls, Inc., as co-defendants in the case. Will Weber and
his attorney, Ayre, succeed in the litigation?
© 2020 McGraw-Hill Education.
Negligence
Duty of Care & Breach

Plaintiff must establish that defendant owed a duty
to plaintiff.

Easy to prove when defendant is breaking a law,
otherwise

Reasonable person standard: measurement of the way
members of society expect an individual to act in a
given situation.


This is a fact-based standard
Professionals are held to a higher standards of care
(think medical malpractice claims)
© 2020 McGraw-Hill Education.
Negligence
Causation

Actual Cause – the determination that the
defendant’s breach of duty resulted directly in the
plaintiff’s injury


But for test – if an injury would not have occurred “but
for” the defendant’s conduct, then the defendant is
the cause of the injury
Proximate Cause – refers to the extent which a
defendant may be held liable for the consequences
of his/her actions. It is determined by foreseeability.

Were the damages reasonably foreseeable at the time
the defendant breached his/her duty.

Palsgraf v. Long Island Railroad Company
© 2020 McGraw-Hill Education.
Negligence
Damages

Damages are the final element of a negligence
lawsuit. Plaintiff must have sustained an injury as a
result of defendant’s actions.

Compensatory

Punitive
© 2020 McGraw-Hill Education.
Res ispa loquitor

“The thing speaks for itself.”

Plaintiff uses this doctrine to allow the judge or jury to
infer that more likely than not, defendant’s
negligence was the cause of plaintiff’s harm, despite
there being no direct evidence of defendant’s lack
of care.

It is a rule of circumstantial evidence.
•
Event was of a kind that ordinarily does not occur in the
absence of negligence.
•
Other responsible causes, including the conduct of third
parties and the plaintiff, have been effectively ruled out.
•
Indicated negligence was within scope of defendant’s duty to
plaintiff.
© 2020 McGraw-Hill Education.
Negligence Per Se

Applies to cases in which the defendant has violated
a statute enacted to prevent a certain type of harm
from occurring.

If defendant’s breach causes the plaintiff to suffer the
harm that the statute was meant to prevent, the
breach is deemed negligence per se.
© 2020 McGraw-Hill Education.
Negligence
Defenses

Contributory Negligence: Once available in all states, but
replaced by comparative negligence in most states. If plaintiff
was also negligent, then plaintiff will be denied any recovery
of damages.

Comparative Negligence: Where damages are apportioned
according to defendant’s degree of culpability.

Assumption of Risk: Defendant must prove that plaintiff
voluntarily and unreasonably encountered the risk of actual
harm the defendant caused.

Plaintiff formally agreed with defendant before entering risky
situation

Plaintiff entered into relationship with defendant knowing
defendant is not in a position to protect plaintiff from known risks.

Plaintiff may ask in the face of the risky situation created by
defendant.

Act of God

Vicarious Liability: When liability is imputed to another.
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Negligence
Special Defenses

Good Samaritan Law: Some states have laws that
prohibit holding a good Samaritan liable for
negligence.

Superseding Cause: an unforeseeable event that
interrupts the causal change between defendant’s
breach of duty and damages.
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Hypothetical 4

Don Streater is driving his new Mustang on a two-lane road, Highway 101, on
the outskirts of the town. The speed limit on Highway 101 is 45 miles per hour.
Albert Hunt is also driving on Highway 101, heading in the opposite direction
from Streater. Hunt looks to his passenger seat to find a map, when he veers
across the center line into Streater’s side of the road. The two cars collide;
luckily, neither man is killed, but Streater is seriously injured. In financial terms,
his medical injuries, medical expenses, and pain and suffering are estimated
at approximately $100,000.
Streater sues Hunt, alleging negligence on the part of the defendant. The
evidence at trial establishes that defendant Hunt was traveling at 50 miles
per hour, had consumed three beers at lunch approximately 30 minutes
before the accident occurred, has 20/50 uncorrected vision, and was not
wearing his prescription eyeglasses at the time of the accident. Evidence at
trial also establishes that Streater was traveling at 50 miles per hour at the
time of the accident and was not wearing his seat belt.

Should the jury return a verdict in favor of Streater in the amount of $100,000
(representing his medical injuries, medical expenses, and pain and
suffering), plus the associated costs of litigation?

Does it matter whether the state in which the accident occurred recognizes
the contributory or comparative negligence doctrine?

In not wearing his seat belt, did Streater assume the risk?
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Strict Liability

Strict liability is liability without fault.

Individual is liable without fault when the activity
meets these three conditions:
1.
Involves a risk of serious harm to people or property;
2.
It is so inherently dangerous that it cannot ever be
safely undertaken; and
3.
It is not usually performed in the immediate
community.
i.e./think dynamite blasting or keeping undomesticated
animals.
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Product Liability

Injured plaintiffs must prove that the product caused
harm, but not how the manufacturer was careless.

Product Liability:
1.
Product must be in defective condition when
defendant sells it;
2.
Defendant must normally engaged in the business of
selling or otherwise distributing the product.
3.
Product must be unreasonably dangerous to the user
or consumer because o its defective condition.
4.
Plaintiff must incur physical harm to self or to the
property by using or consuming the product.
5.
The defective condition must be the proximate cause
of the injury or damage.
6.
Good must not have been substantially changed from
the time that the product was sold to the time the
injury was sustained.
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Hypothetical 5
Hollis McMurtry had been looking forward to his birthday celebration
all month. A new nightclub, TwentyfiveEleven, was scheduled to open
just a day before, and his friends had planned his birthday bash there.
After a long evening of partying, and after McMurtry had consumed
many drinks, he slipped on the club’s very slick marble flooring in the
bathroom and suffered a concussion and a deep cut to the face by a
sharp piece of door hardware. The wound left a large scar on his face,
which his doctors told him would require extensive plastic surgery to
repair. Fearing that McMurtry would sue, and that others may suffer
similar injuries, the club’s owners quickly replaced the bathroom
flooring and removed the hardware that caused McMurtry’s injury.
McMurtry’s attorney, Jericka Dorland, advised him that she will invoke
the doctrine of res ipsa loquitor in a lawsuit against the club. Why did
Dorland choose res ipsa loquitor for this case? Is the club completely
liable for McMurtry’s injuries?
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Chapter 7
Intellectual Property
© 2020 McGraw-Hill Education. All rights reserved. Authorized only for instructor use in the classroom. No reproduction or further distribution permitted without the
prior written consent of McGraw-Hill Education.
Hypothetical Case 1
As this chapter indicates, one source of controversy for copyrighted works is the application of
the fair-use doctrine. This doctrine provides that others may reproduce a portion of a
copyrighted work for purposes of “criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, and research.” In determining whether the fairuse doctrine provides a valid defense to a claim of copyright infringement, Section 107 of the
Copyright Act requires that a court weigh the following four factors: (…