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103 Cards in this Set
- Front
- Back
Definition of Law
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A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong
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Functions of Law
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To maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change
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Legal Sanctions
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Are means by which the law enforces the decisions of the courts
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Laws ad Morals
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Are different but overlapping; law provies sanctions, while morals do not
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Law and Justice
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Are separate and distinct concepts; justice is fair, equitable, and impartial treatment of competing interests with due regard for the common good
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Substantive Law
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Law creating rights and duties
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Procedural Law
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Rules enforcing substantive law
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Public Law
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Law dealing with the relationship between government and individuals
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Private Law
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Law governing the relationship among individuals and legal entities
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Civil Law
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Law dealing with rights and duties the violation of which constitutes a wrong against the individual or other legal entity
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Criminal Law
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Law establishing duties which, if violated, constitute a wrong against the entire community
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Sources of Law
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1) Constitutional Law, 2) Judicial Law, 3) Legislative Law, 4) Administrative Law
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Constitutional Law
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Fundamental law of a government establishing its powers and limitations
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Judicial Law
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1) Common Law - body of law developed by the courts and serves as precedent for determination of later controversies; 2) Equity - body of law based upon principles distinct from common law and providing remedies not available at law
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Legislative Law
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1) Treaties - agreements between or among independent nations; 2) Executive Orders - laws issued by the President or by the governor of a state
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Administrative Law
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Body of law created by administrative agencies to carry out their regulatory powers and duties
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District Courts
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Trial courts of general jurisdiction that can hear and decide most legal controversies
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Courts of Appeals
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Hear appeals from the district courts and review orders of certain administrative agencies
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The Supreme Court
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The nation's highest court, whose principal function is to review decisions of the Federal Courts of Appeals and the highest State courts
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Special Courts
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Have jurisdiction over cases in a particular area of Federal law and include the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Bankruptcy Courts, and the U.S. Court of Appeals for the Federal Circuit
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Inferior Trial Courts
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Hear minor criminal cases, such as traffic offenses, and civil cases involving small amounts of money; conduct preliminary hearings in more serious criminal cases
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Trial Courts
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Have general jurisdiction over civil and criminal cases
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Special Courts
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Trial courts, such as probate courts and family courts, having jurisdiction over a particular area of State law
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Appellate Courts
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Include one or two levels; the highest court's decisions are final except in those cases reviewed by the U.S. Supreme Court
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Subject Matter Jurisdiction
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Authority of a court to decide a particular kind of case
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Exclusive Federal Jurisdiction
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Federal courts have sole jurisdiction over Federal crimes, bankruptcy, antitrust, patent, trademark, copyright, and other specified cases
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Concurrent Federal Jurisdiction
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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 U.S.) that do not involve exclusive Federal juridiction, and (2) diversity of citizenship cases involving more than $75,000
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State Jurisdiction
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State courts have exclusive jurisdiction over all matters to which the Federal judicial power does not reach
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Jurisdiction over the Parties
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The power of a court to bind the parties to a suit
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4 Types of Jurisdiction
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In Personam, In Rem, Attachment, Venue
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In Personam Jurisdiction
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Jurisdiction based upon claims against a person, in contrast to jurisdiction over the person's property
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In Rem Jurisdiction
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Juridiction based on claims against property
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Attachment Jurisdiction
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Jurisdiction over a defendant's property to obtain payment of a claim not related to the property
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Venue
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Geographical area in which a lawsuit should be brought
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The Pleadings
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A series of statements that give notice and establish the issue of fact and law presented and disputed
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Complaint
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Initial pleading by the plaintiff stating his/her case
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Summons
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Notice given to inform a person of a lawsuit against him/her
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Answer
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Defendant's pleading in response to the plaintiff's complaint
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Reply
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Plaintiff's pleading in response to the defendant's answer
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Pretrial Procedure
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Process requiring the parties to disclose what evidence is available to prove the disputed facts; designed to encourage settlement of cases or to make the trial more efficient
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Judgement of Pleadings
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A final ruling in favor of one party by the judge based on the pleadings
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Discovery
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Right of each party to obtain evidencefrom the other party
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Pretrial Conference
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A conference between the judge and attorneys to simplifiy the issues in dispute and to attempt to settle the dispute without trial
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Summary Judgement
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Final ruling by the judge in favor of one party based on the evidence disclosed by discovery
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Trial
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Determines the facts and the outcome of the case
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Jury Selection
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Each party has an unlimited number of challenges for cause and a limited number of peremptory challenges
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Conduct of Trial
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Consists of opening statements by attorneys, direct and cross-examination of witnesses, and closing arguments
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Directed Verdict
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Final ruling by the judge in favor of one party based on the evidence introduced at trial
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Jury Instructions
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Judge gives the jury the particular rules of law that apply to the case proves
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Verdict
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The jury's decision based on those facts the jury determinesthe evidence proves
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Motions Challenging the Verdict
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Include motions for a new trial and a motion for judgement notwithstanding the verdict
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Appeal
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Determines whether the trial court committed prejudicial error
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Enforcement
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Plaintiff with an unpaid judgement may resort to writ of execution to have the sheriff seize property of the defendants and to garnishment to collect money owed to the defendant by a third party
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Arbitration
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A nonjudicial proceeding in which a neutral party selected by the disputants reders a binding decision (award)
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Conciliation
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A nonbinding process in which a third party acts as an intermediary between the disputing parties
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Mediation
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A nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider
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Mini-Trial
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A nonbinding process in which attorneys for the disputing parties (typically corporations) present evidence to managers of the disputing parties and a neutral third party, after which the managers attempt to negotiate a settlement in consultation with the third party
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Summary Jury Trial
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Mock trial followed by negotiations
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Negotiation
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Consenual bargaining process in which the parties attempt to reach agreement resolving their dispute without the involvement of third parties
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Federalism
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The division of governing power between the Federal government and states
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Federal Supremacy
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Federal law takes precedence over conflicting State law
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Federal Preemption
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Right of the Federal government to regulate matters within its power to the exclusion of regulation by the states
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Judicial Review
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Examination of governmental actions to determine whether they conform to the U.S. Constitution
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Separation of Powers
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Allocation of powers among executive, legislative, and judicial branches of government
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State Action
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Actions of governments to which constitutional provisions apply
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Federal Commerce Power
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Exclusive power of the Federal government to regulate commerce with other nations and among the States
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State Regulation of Commerce
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The Commerce Clause of the Constitution restricts the States' power to regulate activitiesif the result obstructs interstate commerce
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Legislative Control
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Includes control over the agency's budget and enabling statute
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Control by the Executive Branch
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Includes the President's power to appoint members of the agency
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Disclosure of Information
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Congressionally required public disclosure enhances oversight of agency activities
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Crime
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Any act or omission forbidden by public law
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Essential Elements of a Crime
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1) Actus Reus - wrongful or overt act; 2) Mens Rea - criminal intent or mental fault
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Felony
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A serious crime
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Misdomeaner
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A less serious crime
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White-Collar Crime
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Nonviolent crime involving deceit, corruption, or breach of trust
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Battery
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Intentional infliction of harmful or offensive bodily contact
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Assault
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Intentional infliction of apprehension of immediate bodily harm or offensive contact
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Types of Defamation
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1) Libel - written or electronic defamation; 2) Slander - spoken defamation
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Defenses of Defamation
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Truth, absolute privilege, conditional privilege, and constitutional privilege are defenses to a defamation action
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4 Invasions of Privacy
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1) Appropriation; 2) Intrusion; 3) Public disclosure of private facts; 4) False light
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Appropriation
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Unauthorized use of a person's identity
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Intrusion
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Unreasonable and highly offensive interference with the seclusion of another
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Public Disclosure of Private Facts
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Highly offensive publicity of private information
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False Light
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Highly offensive and false publicity about another
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Misuse of Legal Procedure
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Torts that protect an individual from unjustifiable litigation
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Real Property
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Land and anything attached to it
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Tresspass (Real Property)
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Wronfully entering on land of another
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Nuissance
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A non-trespassory interference with another's use and enjoyment of land
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Personal Property
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Any property other than land
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Tresspass (Personal Property)
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An intentional taking or use of another's personal property
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Conversion
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Intentional exercise of control over another's personal property
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Interference with Contractual Relations
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Intentionally causing one of the parties to a contract not to perform
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Disparagement
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Publication of false statements about another's property or products
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Superior Skill or Knowledge (Reasonable Person)
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If a person has skills or knowledge beyond those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the person has acted with reasonable care
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Emergencies (Reasonable Person)
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The reasonable person standard applies, but an unexpected emergency is considered part of the circumstances
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Violation of Statute (Reasonable Person)
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If the statute applies, the violation is negligence per se in most States
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Duty to Act
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A person is under a duty to all others at all times to exercise reasonable care for the safety of others' person and property; however, except in special circumstances, no one is required to aid another in peril
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Duty to Trespassers
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Not to injure intentionally
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Duty to Licensees
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To warn of known dangerous conditions licensees are unlikely to discover for themselves
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Duty to Invitees
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To exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover
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Factual Cause
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The defendant's conduct is a factual cause of the harm when the harm would not have occurred absent of the conduct
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Abnormally Dangerous Activity
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Strict liability is imposed for any activity that (1) creates a foreseeable and highly significant risk of harm and (2) is not one of common usage
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Keeping of Animals
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Strict liability is imposed for wild animals and usually for trespassing domestic animals
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