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LGS Study Guide Exam 2 Business & the Constitution (12) Commerce Clause - deals most closely with

business (greatest impact), congress power to regulate commerce. Gives Congress the power to regulate tax, buying of goods across the country. Congress borrows $ (bonds). A clause of the U.S. constitution that grants Congress the power to regulate commerce with foreign nations, and among the several states, and with Indian tribes. This clause is intended to foster the development of a national market and free trade among the states. 1. Commerce with Native American tribes 2. Foreign Commerce 3. Interstate Commerce (commerce that moves between states or that affects commerce between states) States powers - state police powers. Power that permits states and local governments to enact laws to protect or promote the public health, safety, morals, and general welfare. Due Process Clause - contemplates fairness of the law, usually affects everyone. A clause which provides that no person shall be deprived of life, liberty or property without due process of the law. 1. Substantive (the law itself, must be clear and not too broad) Ie cant be too vague. Like its illegal to wear clothes of the opposite gender - - this would not hold up. 2. Procedural (your right to a hearing before a neutral judge before your life, liberty, or property is taken. Your right to proper notice) Equal Protection Clause - usually affects a suspect class. A clause which provides that a state cannot deny to any person within its jurisdiction the equal protection of the law Applies to state, local and federal. Corporations are also protected. Establishment Clause - ie: challenging prayer in school. Religious activities in the government. A clauses of the First Amendment that prohibits the government from either establishing a state religion or promoting one religion over another. Guarantees that there will be no state-sponsored religion. Free Exercise Clause - under 1st amendment, Government cant interfere with religion. A clause of the First Amendment that prohibits the government from interfering with the free exercise of religion in the United States. Snyder v. Phelps (2011) of 1st amendment. Westboro Baptist Church, Why can the church get away with it? Freedom of speech/religion etc. Church believes God hates homosexuality in the military, they picket military funerals. Phelps picketed Snyders funeral. Snyder won 2.9 million in compensatory and 8 million in punitive. Court of appeals reversed the judgement. Supreme Court favored Phelps.

LGS Study Guide Exam 2 Preemption doctrine - when the federal law preempts/triumphs (takes preeminence) the state law or any type of inferior law Bill of Rights - The first ten amendments to the Constitution that were aded to the U.S. Constitution in 1791. 1st Amendment - freedom of speech, religion, freedom to assemble, freedom of the press Fully protected speech - opinion is fully protected. you can burn the flag. Speech that can not be prohibited or regulated by the government. ie political speech Unprotected speech - Speech that is not protected by the First Amendment and may be forbidden/banned by the government. 1. Dangerous Speech (ie yelling fire in a theater) 2. Fighting Words (ie provoking violence in others) 3. Defamatory Language 4. Speech that incites the violent overthrow of the government 5. Child pornography 6. Obscene Speech (ie music, videos, movies) Privileges and Immunity Clause - discriminates against outside people ie; higher tuition out of state. State prohibits from discriminate against anyone but their residents. A clause that prohibits states from enacting laws that unduly discriminate in favor of their residents. Torts & Product Liability (15) Negligence - the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances. Not intentional, most common kind of tort. Ie; car accident. Four elements (duty, causation, damages, ) Tort - A civil wrong not arising from a breach of contract; a breach of legal duty that proximately causes harm or injury to another. 1. Intention 2. Negligence - most common type of tort 3. Strict Liability 4. Product Liability a. Breach of Warrants b. Negligence c. Strict Liability - unreasonably dangerous products (chain of distribution is liable) Reasonable person standard - The standard of behavior expected of a hypothetical "reasonable person"; the standard against which negligence is measured and that must be observed to avoid liability for negligence

LGS Study Guide Exam 2

Palsgraf v. Long Island RR - Proximate Causations (1920s) She was not a foreseeable plaintiff. There was no proximate causation. Proximate Causations (1920s) She was not a foreseeable plaintiff. There was no proximate causation. Lady on the train and the man with fireworks. She gets hit by the scales, does not get recompensed for injuries, she was not a foreseen injury. There was no causation, a freak accident. The RR is not liable. Premises liability/duty owed by owners & occupiers of land Entrants: 1. Trespassers (known/unknown) 2. Licensee/Social Guest 3. Business Invite of highest duty- walking into Publix, Must make reasonable inspections, warn or make safe. If liable, depends on if they knew about it and how long they allowed the condition to stay. Owe the highest duty to others.

Punitive damages - Monetary damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct. Awarded in a negligence case. Careless disregards. compensatory damages - Out of pocket damages; lasting pain and anguish. Assumption of the risk - A defense a defendant can use against a plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury. Contributory negligence - A rule in tort law that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiffs own fault; used in a minority of states Comparative negligence - Liebeck; A rule in tort law that reduces the plaintiffs recovery in proportion to the plaintiffs degree of fault, rather than barring recovery completely; used in majority of states. share the fault Intentional Torts - a wrongful act knowingly committed. defamation. A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiffs injuries. 1. Assault 2. Battery 3. False Imprisonment 4. Shoplifting Defamation - Anything published or publicly spoken that causes injury to another's good name, reputation, or character. Intentional Tort. A false statement made by one person by another. Must prove it was untrue and published. 1. Slander - spoken

LGS Study Guide Exam 2 2. Libel - written Public figures have to prove actual malice to prove defamation

Katko v Briney Case - premises liability. Cannot use deadly force to protect property. A gun in a cabin just to catch a trespasser. Why did Katko win? Cannot use deadly force. Briney mounted a spring loaded shotgun in his unoccupied house, the shotgun severely injured Katkos leg when he tried to break in the house. Katko sued. The court ruled for Katko and was awarded 20,000 in actual damages and 10,000 in punitive damages. Though a landowner has no duty to make his property safe for trespassers, he may not set deadly traps against them. Katko had shotgun wounds. Res ipsa Ioquitur - A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves". Things speak for itself Plaintiff shifts burden to defendant. Ie; operating on the wrong leg. A tort in which the presumption of negligence arises because (1) the defendant was in exclusive control of the situation or (2) the plaintiff would not have suffered injury but for someones negligence. The burden is on the defendant to prove that he or she was not negligent. Negligence per se - An action or failure to act in violation of a statutory requirement. A tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care. Product Liability (types) - breach, negligence, strict liability Strict Product Liability - Liability regardless of fault. In tort law, strict liability may be imposed on defendants in cases involving abnormally dangerous activities, dangerous animals, or defective products. A tort doctrine that makes manufactures, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, irrespective of fault. Negligence Product Liability Failure to warn/ defects mfg. - failure to warn those of danger, if something has defective packaging, etc. Ie hairdryer in a bathtub Criminal Law (12) Different burden of proof Probable Cause - before anyone can be arrested you have to have probable cause. 1. caught in act 2. investigation 3. grand jury indictment

LGS Study Guide Exam 2 have to have probable cause with 4th amendment (protection against illegal search and seizure) Exclusionary rule - In criminal procedure, a rule under which any evidence that is obtained in violation of the accused's constitutional rights guaranteed by the Fourth, Fifth, and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court. Ie snow on the roof Double Jeopardy - A situation occurring when a person is tried twice for the same criminal offense; prohibited by the Fifth Amendment to the constitution. Cant be tried twice for the same crime. Constitutional Safeguards: 4th, 5th, 6th & 8th Amendments 4th- protection against search and seizure. Before the law gets a search warrant, must have probable cause. Unless in plain view or you give consent. 5th- protects against forcing to be a witness against yourself. Miranda rights, right to an attorney,etc. Cannot be tried for the same crime twice. 6th- right to a jury trial if you are the accused. Not in a civil case, but in a criminal case. Right to be there face to face. 8th- no excessive bail or fines. People use this to fight the death penalty. Protection against cruel and unusual punishment. Felony- A crime--such as arson, murder, rape, or robbery-- that carries the most severe sanctions, ranging from one year in a state or federal prison to the death penalty. Up to a year and a day. The most serious kinds of crimes. They are male in se, inherently evil, and are usually punished by imprisonment. misdemeanor/ punishments - Misdemeanor: A lesser crime than a felony, punishable by a fine or incarceration in jail for up to one year. Possible punishment of 15 days or more, but no more that one year. Mala prohibita, prohibited by society. imprisonment for less than a year. or by fine. Burden of proof - gov has to prove this to accuse someone. Must prove the illegal act and the evil intent. Kentucky v. King (2011) - Police did a control buy in parking lot and kicked in wrong door and they were breaking the law too. Did not have probable cause. Could not accuse the people who they didnt mean to catch. The warrant less search was not lawful even though King motioned exigent circumstances. Exclusionary rule.

LGS Study Guide Exam 2 Florida v. Jardines (2013) - drug sniffing dog on front porch based on an anonymous tip, said it was an illegal search. Police cant use what the public doesnt have access to (drug sniffing dog) it is a search. Intellectual Property (6) Patent - temporary monopoly, invention patents good for 20 years. Starts the time when you sign the application. Design patents = 14 years. The patent must be useful, novel, not obvious. 1 year doctrine- cannot grant a patent if it has been used by the public for more than 1 year. A grant by the federal government upon the inventor of the invention for the exclusive right to use, sell, or license the invention for a limited amount of time. utility patents - 20 yrs, start date of filed.

Copyright Individuals: lifetime + 70 years Business: 120 years from year of creation OR 95 years from 1st year of publication, whichever is shorter. A legal right that gives the author of qualifying subject matter, and who meets other requirements established by copyright law, the exclusive right to publish, produce, sell, license and distribute the work. Fair use doctrine - allows brief quotations

Trade Secret - a product formula, pattern, design, compilation of data, customer list or other business secret. You can have a lawsuit for this misappropriation for anyone who steals a trade secret. Trademark registered 1 year doctrine - patents wont be granted of its been used by the public for a year or more. Any trade name, symbol, word, logo, design, or device used to identify and distinguish goods of a manufacturer or seller or services of a provider from those of other manufactures, sellers, or providers. A distinctive mark, symbol, name, word, motto or device that identifies the goods of a particular business. Invention patents are goof for 20 years in Washington Design patents are valid for 14 years Patents must be novel, useful and non obvious.