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Unformatted text preview: General Outline for the 1st and Midterm Exams LS 3323.002 Spring, 2008 [Note: Exam 1 will likely cover Assignments 1-3. The midterm will cover Assignments 1-7.] [Note: This study outline is to aid you in preparation for our midterm exam. I'll try to be as comprehensive as possible with topics, but it is your job to fill in the details. Among your study responsibilities is to read the text as it relates to topics we cover in class.] Assignment 1: Introduction to Law and the Common Law Be prepared to differentiate the Common Law System of the U.S. and the Civil Legal System. How do the differences between these legal systems affect their sources of law? What are the decision making choices of a common law court (such as the Nebraska Supreme Court in the four cases)? What are our recurring themes? Differentiate Substantive from Procedural Law. Differentiate Public from Private Law. Assignment 2: Dispute Resolution, Courts and Litigation Differentiate Arbitration from Mediation. When does Arbitration work best? Why? o Arbitration works best when parties consent to it in advance Be able to state the basic statistics associated with litigation and to explain what happens to cases that don't reach trial. o 3% of filed cases reach trial o Of actual trials, plaintiffs tend to win about 50%. o If a case does not make trial is either thrown out, or dismissed, or settled out of court. Be prepared to discuss fully the differences between LAW and EQUITY. o See Assignment 2 Notes What is "judgment proof?" How does it relate to law and equity? o A defendant is "judgment proof" if he hasn't sufficient assets to pay on a judgment. o What is the Statute of Limitation? Relate the "Discover Rule" to this statute. o Statute of Limitations rules governing how quickly those who wish to protect their legal rights must file their claim o The Discover Rule the Statute of Limitations begins to run when the plaintiff knows or has reason to know she was injured and knows or has reason to know that the plaintiff may have caused her injury Be fully prepared to deal with subject matter, personal and in rem jurisdiction. i.e. You will be strictly responsible for determining where a case will be tried. o Subject-matter jurisdiction what court can hear this type of case (federal v. state courts) o Personal jurisdiction what court has jurisdiction over these parties? Or over this thing (real estate, marriage etc.) to require an out-of-state defendant to defend a case in your state (i.e. to demonstrate that defendant has the minimum constitutional contacts within your state), you must show one of the following: the defendant was physically in that state and was involved in a transaction or occurrence provoking the plaintiff's claim OR the defendant affirmatively sought to do business in the plaintiff's state. o Generally state courts have subject matter jurisdiction. o Federal District courts generally have non-exclusive subject matter jurisdiction over: Federal questions cases involving fed. Law Diversity cases no common state between any plaintiff and defendant o In rem jurisdiction deals with cases in which the disposition of some thing, e.g. real estate, is the focus of the case. Actions for foreclosure, quiet title and divorce Two important rules apply to these actions in rem: 1) only state courts have subject matter jurisdiction over them; & 2) the only state with proper in rem jurisdiction is the state in which the thing resides (fyi: a marriage exists in any state a spouse resides). What are the basic steps of litigation? What is the "discovery" process? o Pre-trial pleadings, discovery & pre-trial conference Discovery the process in which the opposing parties may obtain information from each other and from third parties prior to trial o Trial burden of proof / standard of burden of proof o Appeal typically matters of law, not fact What is burden of proof? How does it relate to "prima facie" case? o Burden of Proof the responsibility to present credible evidence supporting one's case. o In a civil case, the plaintiff begins with the burden of proof. If the plaintiff establishes a prima facie case, then the burden of proof shifts to the defendant. o Prima Facia case - denotes evidence that (unless rebutted) would be sufficient to prove a particular proposition or fact. What is the standard of burden of proof? How do differing standards for criminal and civil cases affect outcomes in these cases? o How do we decide who wins? o Civil Case find for the plaintiff or for the defendant "by the preponderance of the evidence." (whoever presents the more credible case) o Criminal Case find guilty "beyond a reasonable doubt." o If a person is charged with a crime and is also a civil defendant based on the same conduct, then does the determination in a criminal case affect the later civil case? If guilty, then... LIABLE. If not guilty, then... maybe liable, maybe not... Define "res judicata." o If a party has litigated a case to "final determination", then any issue that was or could have been raised in that litigation merges into the final determination and that party cannot raise that issue again. o Comes into play once the case has been filed Assignment 3: The Constitution and Business What does it mean when we say that the U.S. Constitution deals with "public law?" What is the scope or application of constitutional law? What is the Commerce Clause? Why is it so important? o "Congress shall have the power to regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes; U. S. Const. Art. I, Sec. 8 . o What is interstate commerce? o Commerce that crosses state lines o Intrastate commerce that significantly affects interstate commerce (e.g. Ollie's BBQ) o Intrastate commerce that, when combined with like activities, significantly affects interstate commerce (e.g. Farmer Filburn) Where do states get their powers to regulate interstate commerce? o Under the 10th amendment, all those powers not delegated to the Federal Government are retained by the states. o The U.S. Supreme Court has labeled these retained powers Police Powers - the power to promote the health, welfare and safety of the people within that state. What are the limits of state powers to regulate interstate commerce? o States cannot contradict federal law (e.g. lower minimum wage) Federal Supremacy - "The Constitution, and the Laws of the United States...shall be the supreme Law of the Land: and the judges in every State shall be bound thereby..." o States cannot discriminate against interstate commerce unless ... Neither may state law discriminate against interstate commerce by, for example, giving preference to in-state citizens/businesses, unless the state can demonstrate a compelling and legitimate reason for such discrimination. o States cannot place an undue burden on interstate commerce (e.g. Bibb) States cannot place lower tax burdens or more stringent regulations on resident than on nonresident businesses. To what extent may states constitutionally tax companies operating in interstate commerce? Why are the rules for state taxation different from those for state court personal jurisdiction? o The tax must be fairly apportioned; e.g. a state income tax may identify and tax that income derived from a firm's intrastate activities only. o There must be a physical nexus by the taxed entity within the taxing state. What distinguishes regular speech from commercial speech? When can the government regulate commercial speech? o State can prohibit false or misleading advertising. o State can regulate truthful advertising if: the state can show a substantial interest in regulate this area; the regulation directly advances that interest; and the regulation goes no further than necessary to advance that interest How does the 4th Amendment freedom from unreasonable searches and seizures apply to commercial searches? When can a governmental body like OSHA obtain a warrant to search a commercial establishment? o Govt. can search if consent; otherwise must obtain warrant and can when: Death or injury on job Employee complaint Search is statistically defensible th Does the 7 Amendment right to a jury in civil cases apply to administrative hearings? Why or why not? o Language of 7th Amendment suggests that it does not extend to administrative hearings o Right to jury would destroy administrative process What is due process of law? What procedure does it require? How does constitutional due process relate to a creditor's effort to repossess collateral when the debtor defaults? o Procedural Due Process - Neither the federal (5th) nor the state (14th) government can deprive a person of life, liberty or property without due process of law. o Generally means that such deprivation must be preceded by: Notice - actual notice is presumptively required with limited exceptions. Fair hearing - right to an impartial forum and to confront adverse witnesses. Applications: criminal, civil, administrative cases; debtor creditor. Assignment 4: Administrative Regulation What are the different descriptions and what is the best description of how the regulated deal with the regulators? o See Assignment 4 Where do administrative agencies get their powers? What are the typical powers of an administrative agency? What are the rules applicable to agencies that wish to propose new regulations? Define and be able to apply the exhaustion doctrine. Assignment 5: Property What is property? o John Locke: The reason for men uniting themselves under government is to preserve their property rights. o Property is a legal term. That is: the term "property" has no meaningful use unless one uses it in a legal/political context. Definition: It is the right to own, possess, use, and/or transfer something tangible or intangible. o It is the reason for private law. (Torts, contracts, product liability, agency, etc.) Contracts are for defining property and the means for transferring property. The right to transfer depends on what is stated in the contract. Be able to apply your definition of property to different rights in things, tangible and intangible. o You do not own an mp3; you own the right to USE it. The record company or musician owns the song or mp3. What are the competing themes in intellectual property law such as copyright? (owner's interest insures creativity v. dissemination of information; e.g. fair use for copyright law) o Intellectual property, the right to protect one's respective writings and discoveries, and the regulations associated with it, copyrights, are designed to protect and encourage inventive and artistic creativity. o "Fair Use" Doctrine: designed to encourage dissemination of copyrighted material for non-commercial purposes such as criticism, comment, news reporting, teaching, and scholarship. It is the most understood concept. Factors to be considered in a "fair use" case are: What is the purpose of the copy? (Is it for commercial or nonprofit educational uses) What is the nature of the copyrighted work? (What is being used?) Assignment 6: Torts How much of the work is being copied? (In relation to the copyrighted work as a whole) What is the effect of copy on the original work? (The market for or value of the copyrighted work) We don't know what the law is until the court decides it on a case-by-case basis. What are torts? o Torts are non-contractual, legally recognizable, civil wrongs such as negligence, assault, and defamation. o Tort law is to compensate those who have suffered a wrong o Not all torts are a crime, but sometimes the two overlap. o Torts exist because of property. They are a means of protecting property. Differentiate intentional (malicious), negligence and strict liability torts based on the plaintiff's burden of proof. o The types of torts are a continuum of burden of proof to prove defendant's fault. Not a fault continuum. o An intentional, or malicious, tort requires the plaintiff to prove that the wrongful act was intentional and the defendant knew the possible consequences of his actions. An evil or harmful motive is not required for there to be intent. o In a negligence case, the plaintiff must show that the defendant breached a duty to act responsibly by proving: that the defendant owed him/her a duty of care, the defendant breached the duty, the defendant suffered a legally recognizable injury. The defendant caused the plaintiff's injury o In strict tort liability cases, the plaintiff need not prove fault. It is liability without fault. Product liability is the most applicable example of strict tort liability Applied in dangerous activity cases and cases involved with harm caused by an animal What are the key policies that have shaped tort law? o Compensation try our best to restore the plaintiff to their pre-tort position o Precaution encourage proper levels of precaution on both parties, defendant and plaintiff o Administration how much does it cost to administer tort policies (all fee's included...lawer, court, etc) Tort litigation is the most expensive litigation o Punishment Punitive damages are only recoverable if plaintiff can prove intent Be able to distinguish actual and proximate causation. (Remember: both must exist for the plaintiff to recover.) o For a tort to have been committed, the defendant must prove causation. There are two requirements for proving that the defendant caused the plaintiff's injuries Actual cause is "cause in fact" and it can be determined by using the "but for" test: "but for" the wrongful act, the injury would not have occurred. If the injury could have happened without the defendant's act, then there is no causation in fact. Proximate cause, or legal cause, exists when the connection between the act and the injury is so strong that it justifies imposing liability. Linked to the concept of foreseeability. Foreseeability was there a foreseeable risk of injury created by the defendant's actions Differentiate compensatory and punitive damages in tort cases. o Actual (compensatory) damages medical expenses; lost earnings; property damages, and Pain and Suffering (non-economic damages) Pain and Suffering when your life has been altered, temporarily (intense pain) or permanent (loss of limb, sight, etc.) o Punitive Damages non-compensatory; intended to punish or make example of defendant. Only awarded if plaintiff can prove intent. What is "joint and several liability" and why is it the object of tort reform? o The traditional rule: If there are multiple defendants, then each defendant is responsible to pay his share of the judgment, but is also responsible for the entire judgment. o Reform proposal: proportional share only. What is the collateral source doctrine and why is it the object of tort reform? o Traditional Rule: Compensation received by the plaintiff from other sources e.g. insurance or workers' compensation does not reduce the plaintiff's recovery. o Proposed Reform: Workers Comp. Benefits should reduce a plaintiff's recovery. What are contingency fees and why are they the object of tort reform? o Traditional Rule: Contingency Fees provide access to judicial remedies that may not otherwise be available to legitimate plaintiffs. o Proposed Reform: Reduce percentage of contingency fees, making some lawsuits less attractive. What is respondeat superior? o requires employer to answer for the torts of employee if such tort occur within the scope of the employment relationship. Therefore corporations must answer for the acts of their agents and employees and partnerships must answer for those of the individual partners. ...
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This note was uploaded on 04/09/2008 for the course L S 3323 taught by Professor Razook during the Spring '08 term at The University of Oklahoma.
- Spring '08