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42 Cards in this Set
- Front
- Back
The Commerce Clause
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Gives Congress the power to regulate any activity that has any appreciable effect on interstate commerce
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Eminent Domain
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The power of the government to take, or to authorize the taking of, private property for public use
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The Takings Clause (found under the 5th Ammendment)
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"nor shall private property be taken for public use, without just compensation"
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Two Categories of Regulatory Takings
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Categorical or per se takings:
1. Regulation causes a property owner to suffer a physical invasion of the property 2. Regulation denies all economically beneficial use of the land |
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The Due Process Clause
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Ensures procedural safeguards when life, liberty, and property were the subjects of government action
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The Equal Protection Clause
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No state shall "deny to any person within its jurisdiction the equal protection of the laws"
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Rational Basis Test of Equal Protection
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-Upheld only if they are designed to serve a compelling state of interest
-"reasonably and rationally related to the health and welfare of the people" |
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The First Amendment
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Protects freedom of speech and freedom of the press from infringement by the government
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A Contract
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A promise that the law will enforce
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An Offer
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-Made by the offeror and gives the offeree the power to bind the offeror by accepting the offer
-Test is whether a reasonable person in the position of the offeree would interpret the offer as signifying the offerer's intent to be bound |
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Acceptance
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Words or actions by which an offeree signifies his or her intention to be bound by the offer
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The Mirror Image Rule
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-The acceptance must mirror the offer
-If it adds new terms then it is a counteroffer |
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UCC 2-207
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-Provides that a document intended to be an acceptance is an acceptance even though it has terms different from those in the offer
-Only when both parties are merchants -New terms become part of the contract unless one of the three conditions is met: 1. The offeror expressly limited acceptance to the terms of the offer 2. The offeror objects to the new terms 3. The new terms materially change the contract |
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Consideration
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-The requirement that a promise be part of a bargained-for exchange in order for it be enforceable
-Offer and acceptance are the bargaining process -Two elements: 1. Legal detriment (a loss) by the promisee that is... 2. Bargained for by the promisor |
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Preexisting Duty Rule
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-A promise to perform a preexisting legal duty is not consideration
-Modifications of existing contracts are unenforceable |
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Statue of Frauds
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-Requires written evidence for promises that cannot, by their terms, be performed within one year or is greater than $500
-Courts can enforce oral contract where both parties have performed their part of the obligation and the performance is referable to the contract |
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Promissory Estoppel
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-Enforces promises that lack considerations and oral promises that would otherwise be unenforceable under the Statute of Frauds
-Three conditions must be met: 1. Defendent made an unambiguous promise to the plaintiff 2. Plaintiff showed reliance on the promise 3. The reliance was to the plaintiff's substantial economic detriment |
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Unconscionability
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Exists when one party did not have a meaningful choice and where the terms are so one-sided as to be oppressive
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Tort Law
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-Civil wrong other than a breach of contract
-Includes compensatory and punitive damages |
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Battery
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-An unprivileged, unwanted touching of another
-Could be sexual harassment |
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Assault
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Causing another person to be apprehensive about battery
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Intentional Infliction of Emotional Distress
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Provides a remedy for conduct intended to upset the victim
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Defamation
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-Protects a person's interest in his or her reputation and good name
-Requires proof that: 1. The tortfeasor made a defamatory statement 2. The tortfeasor intended to communicate the defamatory statement 3. The statement identifies the victim to be a reasonable listener 4. The statement was communicated to a third party 5. The victim's reputation was damaged |
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Slander
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-Statements deemed to cause damage
-A statement that: 1. Adversly reflecting on a person's business or profession 2. A person is afflicted with a loathsome communicable disease 3. A person has committed a crime 4. Imputing sexual unchaste behavior to a person |
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Invasion of Privacy
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Four Distinct Privacy Rights:
1. Intrusion 2. Public disclosure of facts 3. False light in the public's eye 4. Appropriation (use of name or likeness for benefit without consent) |
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Palming Off
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If an advertiser represents its good in a way that deceives the average buyer into believing them to be the goods of a competitor
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Trespass
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Two Types:
1. Trespass to personal property (merchandise)/ interferes with value of property 2. Trespass to real property (land) |
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Nuissance
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Substantial inference with the use and enjoyment of an interest in land
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Two Defenses to Intentional Torts
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1. Consent
2. Privilege (self-defense) |
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Negligence
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-Unintentional conduct that is unreasonable under certain circumstances
-Falls below the standard of care that is necessary to protect others against a risk of foreseeable injury -Must prove four elements: 1. The existence of a duty to exercise the degree of care that a responsible and prudent person would exercise under similar circumstances 2. A breach of duty by a failure to adhere to the standard of reasonable conduct (reasonable person standard) 3. That the unreasonable conduct was the actual and proximate cause of the plaintiff's injury 4. Actual injury to the plaintiff |
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Actual Cause
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Direct connection between the defendent's conduct and plaintiff's injury
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Proximate Cause
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Plaintiff's injury has to be natural, probable, and a foreseeable result of the defendents conduct
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Negligence Per Se (can be used as a defense)
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-The violation, by itself, is considered unreasonable
1. The injured person must be within the class of persons the statute was designed to protect 2. The injury must be a type that the statute or regulation was designed to prevent |
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Res Ipsa Loquitur (the thing that speaks for itself)
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-Presumption of negligence
-Can be inferred from the very nature of the accident 1. Injury occurred under negligence 2. Has to be in exclusive control of the defendent |
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Defenses to Negligence
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1. Contributory Negligence: deals with the plaintiffs contribution to the injury
2. Comparative Negligence: recovery is reduced by the percent that the plaintiff's negligence contributed to the injury 3. Assumption of Risk: plaintiff is held to have assumed the risk of injury (i.e. driving with defective breaks with full knowledge) |
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Strict Liability
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-Liability is strictly imposed in certain situation even if the actor does not intend to do the act or exercises all reasonable care
-Three areas where this applies: 1. Injuries cause by a defective product that is unreasonably dangerous because of its defects 2. Keeping of dangerous or vicious animals 3. Result from abnormally dangerous activities |
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Title VII of the Civil Rights Act
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Prohibits discriminatino in employment on the basis of race, color, religion, national origin, or sex
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Disparate Treatment
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-Results when an employer treats one employee less favorably than another because of race, sex, religion, national origin, age, or disability
-Intentional discrimination; focuses on motive |
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Equal Employment Opportunity Clause
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A plaintiff may raise an inference or discrimination showing that he or she:
1. Belonged to a protected class 2. Applied and was qualified for the job 3. Was rejected, after which the position remained open and the employer continued seeking applicants with similar qualifications -Defense needs a legitimate non-discriminatory reason |
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Disparate Impact
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-Criteria systematically excludes members of a protected class from job opportunities
-Plaintiff must prove that the challenged practice disqualifies a protected class of a significantly greater rate than the majority class |
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Exemptions to Prohibitions Against Discrimination
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1. Bona fide Occupational Qualification (BFOQ): allows an employee to discriminate in its hiring where the protected class is a bona fide qualification reasonably necessary to the normal operation of business
2. Professionally Developed Ability Tests: permits the use of any professionally developed test 3. Bona fide Seniority Systems |
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Harassment
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-Unwelcome conduct
-Two types of sexual harassment: 1. Quid pro quo harassment: job benefits exchanged for sexual favors 2. Hostile Environment Harassment: where unwelcome sexual conduct creates an intimidating or hostile environment |