BUL 3310 florida state univesity Notes2025
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Florida State University**We aren't endorsed by this school
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BUL 3310
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Law
Date
Dec 31, 2024
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24
Uploaded by BrigadierFreedomReindeer33
Chapter 1 Notes1.Nature of Law a.Definition of Law i.American jurists and Supreme Court Justices Oliver Wendell Holmes and Benjamin Cardozo defined law as predictions of the way that a court will decide specific legal questions.ii.William Blackstone, an English jurist, on the other hand, defined law as “arule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.”iii.Austin, a nineteenth-century English jurist, defined law as a general command that a state or sovereign makes to those who are subject to its authority by laying down a course of action enforced by judicial or administrative tribunals.iv.Roscoe Pound, a distinguished American jurist and former dean of the Harvard Law School1.This may mean the legal order, “respect for law”2.This may mean the aggregate of laws or legal precepts “systems of law” or justice according to law”3.We may mean the process of determining controversies, whether as it takes place, or as the public, the jurists, and the practitioners in the courts hold it ought to take place.b.Functions of Law i.the primary function of law is to maintain stability in the social, political, and economic system while simultaneously permitting change. The law accomplishes this basic function by performing several specific functions, among them dispute resolution, protection of property, and preservation of the state.ii.A second crucial function of law is to protect the owner's use of property and to facilitate voluntary agreements (called contracts) regarding exchanges of property and servicesiii.A third essential function of the law is the preservation of the state. In our system, the law ensures that changes in leadership and the political structure are brought about by political actions such as elections, legislation, and referenda, rather than by revolution, sedition, and rebellion.c.Legal Sanctions i.Sanctionsare how the law enforces the decisions of the courts. Without sanctions, laws would be ineffectual and unenforceable.ii.Ex: a sanction in a civil (non-criminal) case is the seizure and sale of the property of a debtor who fails to pay a court-ordered obligation, called a judgment.
1.under certain circumstances, a court may enforce its order by finding an offender in contempt and sentencing him to jail until he obeys the court's order.2.In criminal cases, the principal sanctions are the imposition of a fine, imprisonment, and capital punishment.d.Law and Morals i.Law: “You must drive on the right side of the road”ii.Middle: “Thou shall not kill”iii.Moral: “You should not silently stand by and watch a blind man walk off a cliff”e.Law and Justice i.Without law, there can be no justiceii.Justice may be defined as fair, equitable, and impartial treatment of the competing interests and desires of individuals and groups with due regardfor the common good. iii.Law is no guarantee of justice. Some of history's most monstrous acts have been committed under “law.”2.Classification of Law a.Substantive and Procedural Lawi.Substantive lawcreates, defines, and regulates legal rights and duties. Thus, the rules of contract law that determine when a binding contract is formed are rules of substantive law.ii.Proceduralestablishes the rules for enforcing those rights that exist lawby reason of substantive law. Thus, procedural law defines the method bywhich one may obtain a remedy in court.b.Public and Private Law i.Public lawis the branch of substantive law that deals with the government's rights and powers in its political or sovereign capacity and in its relation to individuals or groups. 1.consists of constitutional, administrative, and criminal law.ii.Private lawis that part of substantive law governing individuals and legal entities (such as corporations) in their relations with one another. 1.Business law is primarily private law.c.Civil and Criminal Law i.Civil law defines duties the violation of which constitutes a wrong against the party injured by the violation.1.Part of private lawii.Criminal lawestablishes duties the violation of which is a wrong against the whole community.1.Part of public law2.the purpose of criminal law is to punish the wrongdoer, the purpose of civil law is to compensate the injured party.iii.Civil Action is a noncriminal lawsuit that begins with a complaint and usually involves private parties.
1.injured party sues to recover compensation for the damage and injury he has sustained as a result of the defendant's wrongful conduct. The party bringing a civil action (the plaintiff) has the burden of proof, which he must sustain by a preponderance (greater weight) of the evidence.iv.The government must prove criminal guilt beyond a reasonable doubt, which is a significantly higher burden of proof than that required in a civil action.3.Sources of Law a.Constitutional Lawi.Constitution—the fundamental law of a particular level of government—establishes the governmental structure and allocates power among the levels of government, thereby defining political relationships.ii.It also restricts the powers of government and specifies the rights and liberties of the people.1.Ex: the Constitution of the United States not only specifically states what rights and authority are vested in the national government but also specifically enumerates certain rights and liberties of the people. Moreover, the Ninth Amendment to the U.S. Constitution makes it clear that this enumeration of rights does not in any way deny or limit other rights that the people retain.b.Judicial Law i.Common Law System: 1.Originated in England and used in the U.S., England, Canada, and Australia. 2.Relies on the judiciary as a source of law. 3.Adopts the adversary system for dispute resolution, where parties initiate and conduct litigation.ii.Civil Law System: 1.Based on Roman law. 2.Depends on comprehensive legislative enactments (codes) and an inquisitorial method of adjudication. 3.Prevails in most of Europe, Scotland, Louisiana, Quebec, Latin America, and parts of Africa and Asia.iii.Common Law Characteristics: 1.Develops "case law" or "judge-made law" as precedent. 2.Evolves through stare decisis, where courts adhere to and rely on past decisions. 3.Allows flexibility for the common law to change and adapt.iv.Equity: 1.Developed as a supplementary system to common law in England.
2.Administered by a court of chancery, presided over by a chancellor. 3.Provides remedies not available in common law, such as specific performance, injunctions, reformation, and rescission. 4.Operates at the discretion of the court based on general legal principles or maxims.v.Unified Courts: 1.In the U.S., common law and equity courts have united to form a single court in most jurisdictions. 2.Vestiges of the old division remain, with the right to a trial by jury applying only to actions at law.vi.Restatements of Law: 1.American Law Institute (ALI) was established in 1923 to prepare an orderly restatement of the general common law of the U.S. 2.ALI, with over 4,300 members, issues Restatements covering various areas of common law. 3.Restatements are authoritative statements, not laws themselves, but highly persuasive and frequently used by courts.c.Legislative Law i.Legislative Law: 1.Legislation has become the primary source of new laws and ordered social change in the U.S. since the end of the nineteenth century. 2.Shift in the center of gravity of law-making towards legislative law. 3.Common law is not well-suited for drastic or comprehensive changes, leading to the modern emphasis on legislative or statutory law. 4.Legislatures, unlike courts, can make sweeping changes rapidly inresponse to technological, social, and economic innovations. 5.Areas of commercial law have largely become statutory, including partnerships, corporations, sales, commercial paper, secured transactions, insurance, securities regulation, antitrust, and bankruptcy. 6.Increased need for uniformity led to the development of proposed uniform laws, with the Uniform Commercial Code (UCC) being a successful example. 7.The UCC aims to simplify, clarify, and modernize commercial transactions, allow expansion of practices through custom and agreement, and make the law uniform among jurisdictions.ii.Treaties: 1.Treaties are agreements between independent nations. 2.Article II of the U.S. Constitution authorizes the President to enter into treaties with the advice and consent of the Senate.
3.Only the Federal government can enter into treaties; they have thelegal force of a Federal statute. 4.Treaties can supersede prior statutes and statutes can supersede prior treaties. 5.Both treaties and statutes are subordinate to the Federal Constitution and subject to judicial review.iii.Executive Orders: 1.The President of the United States has the authority to issue laws known as executive orders, typically delegated by Federal legislation. 2.Executive orders can amend, revoke, or supersede prior executiveorders. Example: President Johnson's 1965 executive order prohibiting discrimination by Federal contractors based on race, color, sex, religion, or national origin. 3.Governors of most States have comparable authority to issue executive orders.d.Administrative Law i.Administrative lawis the branch of public law that is created by administrative agencies in the form of rules, regulations, orders, and decisions to carry out the regulatory powers and duties of those agencies.ii.Concerns matters of national safety, welfare, and convenience, including the establishment and maintenance of military forces, police, citizenship and naturalization, taxation, coinage of money, elections, environmental protection, and the regulation of transportation, interstate highways, waterways, television, radio, trade and commerce, and, in general, public health, safety, and welfare.iii.Justice Jackson stated, “The rise of administrative bodies has been the most significant legal trend of the last century, and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart.” Federal Trade Commission v. Ruberoid Co., 343 U.S. 470 (1952).4.Legal Analysis
Federal Supplement - A set of legal reference books containing decisions of federal courts in chronological order.Chapter Summary Nature of Law●Definition of Law“a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong” (William Blackstone)●Functions of Lawto maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, whilesimultaneously permitting ordered change ●Legal Sanctionsare means by which the law enforces the decisions of the courts ●Law and Morals are different but overlapping; law provides sanctions, while morals do not ●Law and Justiceare separate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good Classification of Law Substantive and Procedural Law ●Substantive Law:law creates rights and duties ●Procedural Law:rules for enforcing substantive law Public and Private Law ●Public Law:law dealing with the relationship between government and individuals ●Private Law:law governing the relationships among individuals and legal entities Civil and Criminal Law ●Civil Law:law deals with rights and duties the violation of which constitutes a wrong against an individual or other legal entity ●Criminal Law:law establishes duties which, if violated, constitute a wrong against the entire community Sources of Law Constitutional Lawis the fundamental law of a government establishing its powers and limitations Judicial Law●Common Law: a body of law developed by the courts that serve as a precedent for the determination of later controversies ●Equity:body of law based upon principles distinct from common law and providing remedies not available at law
Legislative Lawstatutes adopted by legislative bodies ●Treaties:agreements between or among independent nations ●Executive Orders:laws issued by the President or by the governor of a State Administrative Law:body of law created by administrative agencies to carry out their regulatory powers and duties1/11/24Tort - an act or omission that causes legally cognizable harm to persons or property. Tort law, inturn, is the body of rules concerned with remedying harms caused by a person's wrongful or injurious actions.3 Basic Legal Systems of Law in the WorldCommon Law - the body of law created by judges and similar quasi-judicial tribunals by being stated in written opinions.●27 Countries (everywhere Europe ventured)Code/Civil Law - ●From the Romans (write down in a book what the law is, “If you do this it is a violation”)Islamic Law - based on interpretations of sharia. Interpreting sharia requires deep knowledge of the Quran and Sunna, fluency in Arabic, and expertise in legal theory.“Law is reason, free from passion”William Blackstone defined law and wrote all laws●“a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.”Article VIClause 2 Supremacy Clause This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall bethe supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.Only the President can make a treaty and needs a ⅔ approval from the Senate.Judicial Review - the power of the courts to determine the constitutionality of legislative and executive acts.
Marbury vs Madison - created the judicial review to analyze and determine if certain laws are constitutional “Stare decisis” - the legal principle of determining points in litigation according to precedent. (stand by the decisions, let the decision stand)Chapter 2 NotesA priorireasoning is based on theory rather than experimentation and deductively concludes cause to effect and from generalizations to particular instances.Ethical fundamentalindividuals look to a central authority or set of rules to guide them in ethical decision-making:●The essential characteristic of this approach is a reliance upon a central repository of wisdom. ●In some cases, such reliance is total. In others, it occurs to a lesser degree: ○followers of a religion or a spiritual leader may believe that all members of the group must assess moral dilemmas independently, according to each person's understanding of the dictates of certain fundamental principles.Ethical relativismis a doctrine asserting that individuals must judge actions by what they feel isright or wrong for themselves. ●It holds that both parties to a disagreement regarding a moral question are correct because morality is relative. ●While ethical relativism promotes open-mindedness and tolerance, it has limitations.Situational ethicsjudging a person's actions by first putting oneself in the actor's situation●To judge the morality of someone's behavior, the person judging must put herself in the other person's shoes to understand what motivated the other to choose a particular course of action.Utilitarianismis a doctrine that assesses good and evil in terms of the consequences of actions. ●Those actions that produce the greatest net pleasure compared with the net pain are better in a moral sense than those that produce less net pleasure.Act utilitarianismassesses each separate act according to whether it maximizes pleasure overpain. ●For example, if telling a lie in a particular situation produces more overall pleasure than pain, then an act utilitarian would support lying as the moral thing to do.
Rule utilitarians, disturbed by the unpredictability of act utilitarianism and by its potential for abuse, follow a different approach by holding that general rules must be established and followed even though, in some instances, following rules may produce less overall pleasure than not following them. ●In applying utilitarian principles to developing rules, rule utilitarianism thus supports rulesthat on balance produce the greatest satisfaction.The cost-benefit analysisfirst quantifies in monetary terms and then compares the direct and indirect costs and benefits of program alternatives for meeting a specified objective. ●The cost-benefit analysis seeks the greatest economic efficiency, given the underlying notion that acts achieving the greatest output at the least cost promote the greatest marginal happiness over less efficient acts, other things being equal.The chief criticism of utilitarianism is that in some important instances, it ignores justice. Severalsituations would maximize the pleasure of the majority at great social cost to a minority. Under astrict utilitarian approach, for example, it would be ethical to compel a few citizens to undergo painful, even fatal medical tests to develop cures for the rest of the world.Deontological theories(from the Greek word deon, meaning “duty” or “obligation”) address thepractical problems of utilitarianism by holding that certain underlying principles are right or wrong regardless of calculations regarding pleasure or pain. Deontologists believe that actions cannot be measured simply by their results but must be judged by means and motives as well.Immanuel Kant1.Act only according to that maxim by which you can, at the same time, will that it should become a universal law. 2.Act as never to treat another human being merely as a means to an end.Kant's philosophy also rejects notions of the end justifying the means. To Kant, every person is an end in himself or herself and deserves respect simply because of his or her humanity. Thus, any sacrifice of a person for the greater good of society would be unacceptable to Kant.Social ethics theoriesassert that special obligations arise from the social nature of human beings. Such theories focus not only on each person's obligations to other members of society but also on the individual's rights and obligations within society. ●For example, believe that society should provide all persons with social egalitariansequal amounts of goods and services regardless of the contribution each makes to increase society's wealth.Distributive Justice proposed by Harvard philosopher John Rawls, seeks to analyze the type of society that people in a “natural state” would establish if they could not determine in advance whether they would be talented, rich, healthy, or ambitious, relative to other members of society.
Harvard philosopher, Robert Nozick, stressed liberty, not justice, as the most important obligation that society owes its members. stress market outcomes as the basis for Libertariansdistributing society's rewards. Only to the extent that one meets the demands of the market does one deserve society's benefits. Libertarians oppose interference by society in their lives aslong as they do not violate the rules of the marketplace, that is, as long as they do not cheat others and as long as they honestly disclose the nature of their transactions with others.Intuitionismholds that a rational person possesses inherent powers to assess the correctness of actions. ●Though an individual may refine and strengthen these powers, they are just as basic to humanity as our instincts for survival and self-defense. ●Just as some people are better artists or musicians, some people have more insight into ethical behavior than others.The declares that individuals who wish to act morally should seek good persons philosophyout and emulate those who always seem to know the right choice in any given situation and whoalways seem to do the right thingKohlberg observed that people progress through stages of moral development according to two major variables: age and education.1.First level—the pre-conventional level—a child's conduct is a reaction to the fear of punishment and, later, to the pleasure of reward. Although people who operate at this level may behave morally, they do so without understanding why their behavior is moral. The rules are imposed upon them. 2.During adolescence—Kohlberg's conventional level—people conform their behavior to meet the expectations of groups, such as family, peers, and eventually society. The motivation for conformity is loyalty, affection, and trust. Most adults operate at this level. 3.According to Kohlberg, some people reach the third level—the post-conventional level—at which they accept and conform to moral principles because they understand why the principles are right and binding. At this level, moral principles are voluntarily internalized,not externally imposed. Moreover, individuals at this stage develop their universal ethicalprinciples and even question the laws and values that society and others have adopted.
SummaryDefinitionsEthicsstudy of what is right or good for human beingsBusiness Ethicsstudy of what is right and good in a business settingEthical TheoriesEthical Fundamentalismindividuals look to a central authority or set of rules to guide them in ethical decision makingEthical Relativismactions must be judged by what individuals subjectively feel is right or wrongfor themselvesSituational Ethicsone must judge a person's actions by first putting oneself in the actor's situationUtilitarianismmoral actions are those that produce the greatest net pleasure compared with net pain●Act Utilitarianismassesses each separate act according to whether it maximizes pleasure over pain●Rule Utilitarianismsupports rules that on balance produce the greatest pleasure for society●Cost-Benefit Analysisquantifies the benefits and costs of alternativesDeontologyactions must be judged by their motives and means as well as their resultsSocial Ethics Theoriesfocus is on a person's obligations to other members in society and on the individual's rights and obligations within society
●Social Egalitariansbelieve that society should provide all its members with equal amounts of goods and services regardless of their relative contributions●Distributive Justicestresses equality of opportunity rather than results●Libertariansstress market outcomes as the basis for distributing society's rewardsOther Theories●Intuitionisma rational person possesses inherent power to assess the correctness of actions●Good Personindividuals should seek out and emulate good role modelsEthical Standards in BusinessChoosing an Ethical SystemKohlberg's stages of moral development is a widely accepted model (see Figure 2-1)Corporations as Moral Agentsbecause a corporation is a statutorily created entity, it is not clear whether it should be held morally responsibleEthical Responsibilities of BusinessRegulation of Businessgovernmental regulation has been necessary because all the conditions for perfect competition have not been satisfied and free competition cannot by itself achieve other societal objectivesCorporate Governancevast amounts of wealth and power have become concentrated in a small number of corporations, which in turn are controlled by a small group of corporate officersArguments against Social Responsibility●Profitabilitybecause corporations are artificial entities established for profit-making activities, their only social obligation should be to return as much money as possible to shareholders●Unfairnesswhenever corporations engage in social activities such as supporting the arts or education, they divert funds rightfully belonging to shareholders and/ or employees to unrelated third parties●Accountabilitya corporation is subject to less public accountability than public bodies are
●Expertisealthough a corporation may have a high level of expertise in selling its goods and services, there is absolutely no guarantee that any promotion of social activities will be carried on with the same degree of competenceArguments in Favor of Social Responsibility●The Social Contractbecause society allows for the creation of corporations and gives them special rights, including a grant of limited liability, corporations owe a responsibility to society●Less Government Regulationby taking a more proactive role in addressing society's problems, corporations create a climate of trust and respect that has the effect of reducing government regulation●Long-Run Profitscorporate involvement in social causes creates goodwill, which simply makes good business sensRemember for Test●Utilitarianism and Jeremy Bentham●Adam Smith in The Wealth of Nations (1776), the capitalistic system comprises six “institutions”: economic motivation, private productive property, free enterprise, free markets, competition, and limited government.○“Bible for the Capitalist system”●Profitability, Corporations need to make as much money as they can - Milton Friedman○Rich people invest, make businesses and jobs●Immanuel KantChapter 3The Court SystemOnly one federal system/jurisdiction13 different district courts (Florida is the 11th, California is the 9th)One right of appeal at the intermediate court1.Affirm the decision of the lower court2.Reverse3.RemandOn the examMay ask the Supreme Court to look at your appeal (if they take the case)
Federal - 1States - (50 + 1) “Florida”Supreme Court9 total justices: 4 members tohear, 5 to rule on it7 total justices: 4 members torule on itIntermediate CourtAffirm, Reverse, RemandDistrict Courts: Tallahassee, Tampa, Miami, West Palm Beach, Daytona Beach, and LakelandTrial Courts - EvidenceNo limitation - Felonies No limitation - FeloniesLimited Jurisdiction - Military, Tax, Etc. Limited - County Courts ($30,000 or less): TrafficInferior CourtsLess serious mattersJuri - lawDiction - to speakJurisdiction - to speak the lawTo have a case you need two types of jurisdiction1.Subject matter jurisdiction 2.Jurisdiction over the parties Federal JurisdictionExclusive Jurisdiction- Federal courts have sole jurisdiction over Federal crimes, bankruptcy, antitrust, patent, trademark, copyright, and other specified cases.Concurrent Federal Jurisdiction - the authority of more than one court to hear the same case;State and Federal courts have concurrent jurisdiction over (1) Federal question cases (cases arising under the Constitution, statutes, or treaties of the United States) that do not involve exclusive Federal jurisdiction and (2) diversity of citizenship cases involving more than $75,000.Federal Question Jurisdiction- A genuine issue of law or controversy that can be originally adjudicated within a United States federal court because it concerns U.S. constitutional law, federal statutory law, a treaty, or international law.State JurisdictionExclusive Jurisdiction- State courts have exclusive jurisdiction over all matters to which the Federal judicial power does not reach
Stare Decisis in the Dual Court System1.The U.S. Supreme Court has never held itself to be bound rigidly by its own decisions, and lower Federal courts and State courts have followed that course concerning their own decisions. 2.A decision of the U.S. Supreme Court on a Federal question is binding on all other courts, Federal or State. 3.On a Federal question, although a decision of a Federal court other than the Supreme Court may be persuasive in a State court, the decision is not binding. 4.A decision of a State court may be persuasive in the Federal courts, but it is not binding except in cases in which Federal jurisdiction is based on diversity of citizenship. In such a case, the Federal courts must apply State law as determined by the highest State court. 5.Decisions of the Federal courts (other than the U.S. Supreme Court) are not binding upon other Federal courts of equal or inferior rank unless the latter owe obedience to thedeciding court. For example, a decision of the Fifth Circuit Court of Appeals binds districtcourts in the Fifth Circuit but binds no other Federal court. 6.A decision of a State court is binding upon all courts inferior to it in its jurisdiction. Thus, the decision of the highest court in a State binds all other courts in that State. 7.A decision of a State court is not binding on courts in other States except in cases in which the latter courts are required, under their conflict of laws rules, to apply the law of the former State as determined by the highest court in that State. For example, if a NorthCarolina court is required to apply Virginia law, it must follow the decisions of the Supreme Court of Virginia.In Personam Jurisdiction- jurisdiction based upon claims against a person, in contrast to jurisdiction over the person's propertyIn Rem Jurisdiction - jurisdiction based on claims against a propertyArbitrationis a form of alternative dispute resolution that resolves disputes outside the judiciarycourts. The dispute will be decided by one or more persons, which renders the 'arbitration award'.Mediationinvolves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The mediator meets with the parties at a neutral location where the parties can discuss the dispute and explore a variety of solutions.The Pleadings- a series of statements that give notice and establish the issues of fact and law presented and disputed ●Complaintinitial pleading by the plaintiff stating his case
●Summonsnotice given to inform a person of a lawsuit against her ●Answerdefendant's pleading in response to the plaintiff's complaint ●Replyplaintiff's pleading in response to the defendant's answerDefault Judgment- The Florida Rules of Civil Procedure allow a plaintiff to move for a default judgment when a defendant fails to file or serve any paper by the deadline. Filing a paper means submitting it to the court's clerk. Serving a paper means handing, mailing, or emailing a response to the plaintiff or opposing lawyer.The process requires the parties to disclose what evidence is available to Pretrial Procedureprove the disputed facts; is designed to encourage the settlement of cases or to make the trial more efficient ●Judgment on Pleadingsis a final ruling in favor of one party by the judge based on the pleadings ●Discoveryright of each party to obtain evidence from the other party ●Pretrial Conferencea conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial ●Summary Judgmentfinal ruling by the judge in favor of one party based on the evidence disclosed by the discovery1/23/24Federalism- the division of governing power between the Federal government and the States. The U.S. Constitution enumerates the powers of the Federal government and specifically reserves to the States or the people the powers it does not expressly delegate to the Federal government.Supremacy Clause- establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.Preemption- a legal doctrine that allows a higher level of government to limit or even. eliminatethe power of a lower level of government to regulate a specific issue. Under the. Supremacy Clause of the US Constitution, federal law takes precedence over state and. local law.Judicial Review(on exam) - describes the process by which the courts examine government actions to determine whether they conform to the U.S. Constitution. If government action violates the U.S. Constitution, under judicial review, the courts will invalidate that action. Judicialreview extends to legislation, acts of the executive branch, and the decisions of inferior courts.
Separation of Powers- The U.S. Constitution vests power in three distinct and independent branches of government: the executive, legislative, and judicial branches. The doctrine of separation of powers prevents excessive power from concentrating in any group or branch of government. The legislative branch is granted the power to make the law, the executive branch to enforce the law, and the judicial branch to interpret the law. The separation of powers is not complete, however, and in some instances, two or more branches share power.Federal Commerce Power - The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.”State Regulation of Commerce - Under this interpretation, states are divested of all power to regulate interstate commerce. Second, it has been suggested that the Clause gives Congress and the states concurrent power to regulate commerce. Under this view, state regulation of commerce is invalid only when it is preempted by federal law.Federal Fiscal Powers - In the United States, Article I, Section 8 of the Constitution gives Congress the power to "lay and collect taxes, duties, imposts, and excises, to pay the debts andprovide for the common defense and general welfare of the United States. This is also referred to as the "Taxing and Spending Clause."Subpoena - a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. Eminent Domain(two requirements on test) - 1.The government's ability to provide “just compensation” 2.The proof that the property is being taken for “public use.”
Rational Relationship Test- A test used to determine whether a law or governmental regulation or action violates the equal protection clause.●Basis (Social)●Strict Scrutiny (Compelling)●Intermediate (Important government interest)1/25/24Tort- an act or omission that causes legally cognizable harm to persons or property.Tore = Twisted, crooked, wrongAssault- an intentional act that gives another person reasonable fear that they'll be physically harmed or offensively touched. No physical contact or injury has to occur, but the accused person must have intentionally acted in a way to cause that fear.Battery- an unlawful application of force directly or indirectly upon another person or their personal belongings, causing bodily injury or offensive contact.Intentional TortsAll forms of civil liability are either1.Voluntarily assumed, as by contract2.Involuntarily assumed as imposed by lawTort liability is the second type
The law of tort has three principal objectives: 1.to compensate persons who sustain harm or loss resulting from another’s conduct,2.to place the cost of that compensation only on those parties who should bear it,3.to prevent future harm and losses.In general, a tort is committed when: 1.duty owed by one person to another2.is breached 3.proximately causes4.injury or damage to the owner of a legally protected interest.Intent- as used in tort law, does not require a hostile or evil motive; rather, the term denotes either that the actor desires to cause the consequences of his act or that he believes that those consequences are substantially certain to result.Harm to the Person:●Battery- intentional infliction of harmful or offensive bodily contact.●Assault- intentional infliction of apprehension of immediate bodily harm or offensive contact.●False Imprisonment- intentional confining of a person against their will.○Detain for a reasonable period of time (until authority arrives)○Shopkeeper’s privilege - is a legal principle allowing store owners or their agents (like employees or security personnel) to detain a suspected shoplifter on store property for a reasonable period and in a reasonable manner for investigation.●Infliction of Emotional Distress - extreme and outrageous conduct intentionally or recklessly causing severe emotional distress. Harm to the Right of Dignity●Defamation- false communication that injures a person’s reputation. ○Libel - written or electronically transmitted defamation.○Slander - spoken defamation.
●Maliciously Maligned - to speakharmful untruths about;speakevil of; slander;defame.●Defamation (contd)○Defense - truth, absolute privilege, conditional privilege, and constitutional privilege are defenses to a defamation action. ●Invasion of Privacy○Appropriation - unauthorized use of a person’s identity.○Intrusion - unreasonable and highly offensive interference with the seclusion of another.○Public Disclosure of Private Facts - highly offensive publicity of private information.○False Light - highly offensive and false publicity about another.○Defenses - absolute, conditional, and constitutional privilege.○Misuse of Legal Procedure - torts that protect an individual from unjustifiable litigation. Harm to Property●Definition - intentional harm to property includes the torts of○Trespass to real property○Nuisance○Trespass to personal property
○ConversionHarm to Economic Interests ●Interference with Contractual Relations - intentionally causing one of the parties to a contract not to perform.●Disparagement - publication of false statements about another’s property or products.●Fraudulent Misrepresentation - a false statement, made with knowledge of its falsity, intended to induce another act. Defense to Intentional Torts●Consent - a person may not recover for injury to which he willingly and knowingly consents.●Privilege/Self-Defense- a person may take appropriate action to prevent harm to himself where time does not allow resort to the law.1/30/24Negligence:
●A person is under a duty to all others at all times to exercise reasonable care for the safety of the others’ person and property.●There is not a general duty to avoid unintentional economic loss.An action for negligence consists of five elements, each of which the plaintiff must prove:1.Duty of care: that a legal duty required the defendant to conform to the standard of conduct established for the protection of others; 2.Breach of duty: that the defendant failed to exercise reasonable care; 3.Factual cause: that the defendant's failure to exercise reasonable care in fact caused theharm the plaintiff sustained; 4.Harm: that the harm sustained is of a type protected against negligent conduct; and 5.Scope of liability: that the harm sustained is within the “scope of liability,” which historically has been referred to as “proximate cause.” Third Restatement, Section 6, comments.Contributory Plaintiff's fault > 0 = No recoveryPure Comparative100% - Plaintiff’s fault = RecoveryModified ComparativePlaintiff's fault >= 51% = No recoveryBreach of Duty of Care1.Foreseeable probability that the person’s conduct will result in harm.2.Foreseeable gravity or severity of any harm that may follow.3.The burden of taking precautions to eliminate or reduce the risk of harm.3 Types of Negligence1.Simple Negligence - a situation where an individual fails to exercise reasonable care in aspecific circumstance, despite having the knowledge and capacity to do so. This failure can result in harm to others, even though it is not intentional.2.Ordinary Negligence - a careless mistake or act of inattention results in an injury to another.3.Gross Negligence - is a reckless or purposeful indifference to the reasonable safety of others.
Negligence per se- a doctrine in US law whereby an act is considered negligent because it violates a statute. The doctrine is effectively a form of strict liability. Negligence per se means greater liability than contributory negligence.Duty to Act - the general rule is that a person is under a duty to all others at all times to exercise reasonable care for the safety of the others' person and property.Trespasser- a person who enters or remains on the land of another without the possessor's consent or a legal privilege to do so. The possessor of the land is not liable to adult trespassers for her failure to maintain the land in a reasonably safe condition. is a person who enters or remains on the land of another without the possessor's consent or a legal privilege to do so. Thepossessor of the land is not liable to adult trespassers for her failure to maintain the land in a reasonably safe condition.Licensee- a person who is privileged to enter or remain upon land only by the lawful possessor's consent. Restatement, Section 330. Licensees include members of the possessor'shousehold, social guests, and salespersons calling at private homes. A licensee will become a trespasser, however, if he enters a portion of the land to which he is not invited or remains uponthe land after his invitation has expired.Invitee- a person invited upon land as a member of the public or for a business purpose. An invitee is either a public invitee or a business visitor.Res IPSA Loquitur - meaning “the thing speaks for itself,” applies “when the accident causing the Plaintiff physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.”Factual Cause- Liability for the negligent conduct of a defendant requires that the conduct caused harm to the plaintiff. The Third Restatement states: “Tortious conduct must be a factual cause of physical harm for liability to be imposed.”●But-for test: a person's conduct is a cause of an event if the event would not have occurred but for the person's negligent conduct. That is, conduct is a factual cause of harm when the harm would not have occurred absent the conduct.Proximate Cause- an underlying cause of an accident.
●For example, if a truck driver swerves and hits a car, the driver is the actual cause of the accident. But if they moved to avoid a bicyclist riding on the road, the bicyclist's unsafe driving might be the proximate cause.Defense to Negligence●Contributory Negligence- a common law tort rule that bars plaintiffs from recovering for the negligence of others if they too were negligent in causing the harm. Contributory negligence has been replaced in many jurisdictions with the doctrine of comparative negligence.●Comparative Negligence- a tort principle used by the court to reduce the amount of damages that a plaintiff can recover in a negligence-based claim according to the degree of negligence each party contributed to the incident.●Assumption of Risk - a plaintiff's inability to recover for the tortious actions of a negligent party in scenarios where the plaintiff voluntarily accepted the risk of those actions.Exam Questions come from Prepare and Apply question homework and summaries from the text●Videos to better understand the concept●Powerpoints help out