Section 1
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courts must balance
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Last updated
6 years ago
Date created
Mar 1, 2020
Cards (131)
Section 1
(50 cards)
courts must balance
predictability and the need for changed
ethics
how people should behave
front page test
how would you feel if your actions went viral
Kantian evasion or a palter
aq truthful statement that is nonetheless misleading
life prospects
the circumstances into which we are born
substantive law
defines rights/duties of people (negligence, contractions, ownership, business associations)
in criminal law ___ is determined, __/__ is imposed, and the __ will prosecute
guilt, punishment/fine, government/district attorney
life principles
the rules by which you live your life
ohio state courts
ohio supreme court (not a matter of right), ohio court of appeals, ohio trial court/common please
legal realist
no matter what is written as law, what counts is who enforces that and how they do it; "lets be real"
dont forget to
read book
federal court jurisdiction
federal question (involves fed govt) and involves diversity jurisdiction
federal courts
us supreme court (writ of certiorari must be issued by court), federal circuit cours to appeal, and federal district courts (trial courts)
ethics in business
focus on shareholders or stakeholders/everybody
deontological
results are not as important as the reaons
jurisprudence
nature of law
ohio court of appeals
doesnt hear testimony, brief submitted, oral argument, rules on whether law was applied correctly, no juries, 3 judge panel
individual or cultural moral relativsm
right or wrong depends on society or invidiaul
in civil law, __ brings __, __ is determined, and __ is orderd
victim, suit, liability, compensation
common law
accumulation of precedent
criminal vs civil law
criminal laws regulate crimes, or wrongs committed against the government. Civil laws regulate disputes between private parties.
predictability
weight of precedent, reliance on common law/prior cases
utilitarian
correct decision= max happiness, minimizes pain, for greatest net benefit, issues are the fact that it is hard to qunatify, and a focus on outcome can be bad
moral relativism
right to be tolerent; decision may be acceptable even if its not consistent with ones own ethics standards
Rawlisian justice
should establish a veil of ignorance, making decision on presupposition that life prospects are random (e.g. born poor vs born rich)
orgs responsibility to
society, workers, customers, overseas workers
corporate social responibility (CSR)
obligation to do good
ohio district courts
2 in ohio, north and south; daytons in the sout
stare decisis
precedent bind on later cases "let decision stand"
avoiding ethics traps
slow down, do not trust your first instinct, remember your life principles
primary sources of law
constitutions, statutes, common law, court orders, executive orders/adminstrative law, treaties (state and federal)
Appeals may be
reversed, remanded for closer look, or affirmed
plantiff
party who is suing
need for change
unique facts, societal values/morale change, new technologies
differnce principle
reward that benefit community as a whole (doctors vs atheletes)
moral universalism
some types of behavior are always right or wrong
legal positivist
whatever sovereign declares is law is the law, whether right or wrong; "positive towards legal power"
why be ethical
society benefits, make people happy, provide financial benefit
natural law
unjust law is no law at all
precedent is only binding in
lower courts
ethics traps
money, competition, rationalization, we cannot be objective about ourselves, moral licensing, conflicts of interest, conformity, following orders, euphemisms/reframing (saying in friendly way) lost in crowd, short term perspective/optimism bias, blind spots
diversity jurisdiction
parties of different states and dispute is greater than 75k, its optional to take fed in this case; may not be federal statute but contracts
ohio trial courts/courts of common please
all counties have one; hear testimony and rule on issues of fact and law; civil and ciriminal; juries are triers of fact; judge instructs jury as to what law applies
moral licensing
after doing something ethical, we have a tendency to act unetthically
civil disopedience
related to social laws not contractual
equity
courts may issue ruling such as injunctions to provide an equitable remedy, provide relief, trial courts can issue without jury
procedural law
establishes processes for settling disputes; filing suit in proper court with proper jurisdiction
theories of ethics
thinking of reason vs outcome of decision (never lie or lie for good outcome)
Kantl
you should not do something unless you would be willing to have everyone else do it to you
reacting to unethical behavior
be loyal, exit, or voice what is wrong
Section 2
(50 cards)
Tort
wrong in french; base on obligation imposed by the civil law with no agreeement needed between the parties; victim brings action and receives damages
Opinion in defamation
the statments need to be factually based/provable to be defamation *vague terms or extreme exaggeration in statment usually indicate its not reasonable
fraud
injuring another person by deliberate deception
Does there have to be an existing contract to bring a tort case for interference of business
generally, even with contract, court can find business tort if defendant conduct amounts to crime or separate tort *outrageous facts
Make sure to study
all cases
steps in litigation
pleadings, complaint, answer, counter- claim, reply
Doe, Roe vs Mills (Mich Ct of Appeals, 1995) outcome
based on inentional infliction of emotional distress maybe successfully claimed where defendants behavior is deemed outrageous; outcome was that juries must decide what is outrageous since they represent local standards
Interference with prospective advantage exsists:
When there is relationship which give plantiff reasonable expectation of econ advntge, even tho no contact exists; Whn dfndnt maliciously interferes/prevents relationship from dvlping; Courts often interepret malice as criminal action or independent tort; not competition *see carvelle vs noonan
interagatories
written questions that party must answer under oath
Discovery in Litigation
refers to lawsuits; process of filing claims in court, and ultimately going to trial
class actions
wrong in question has affected large number of persons; plantif represents all; judicial efficieny: hears facts once; defendents bank on fact that individauls wont sue over small, but they will add up; court must certify class; congress passed statue to force large multi class actions to be federal
complaint
short statment of allegations and the legal claims, this is served with summons; service of process begins with suit
For privelage, when info is legitimately needed, the speaker givigng it has
qualified priviledge. This may happen when someone reports suspected criminal act or testifies at trial even if prove wrong later; security and private police have qualified privilege
Torts
Defamation (slander/libel); Negligence; Interference with Contract; Fraud
Doe, roe vs mills involved
dumpster diving into abortion clinic and posting info found inside online; no trial ordered, it was reversed, remanded for trial to be seen by a jury
counter claim and reply
a second suit in response to the first; counter claim to counter claim
Who has privilege when it comes to defamation
defendents; speakers in courtrooms/legislaters have absolute privilege they make speak freely as long as it is true
summary judgment
a ruling that no trial is necessary because essential facts are not in dispute; maybe requested by either side (statute of limitations has passed)
staturoy agent
cant sue corporation; each state requires that businesses must submit staturoy agent/registered agent to serve for the company on fill of the secreatry of state
trespass
entering land that belongs to someone else or remaining after being asked to leave; keeping something you own on someones land; mistake is not defense
Elements of intentional torts (defamation)
statement made, falseness, communicated to one other person, injury occurded not hurt feelings, injury to dignity in libel, courts assume injury by permanent nature; broadcast included
mediation
uses mediator, can be orderd, mediator doesnt render a decision
pleadings
paper that being a lawsuit must be served on defendant
aspects of litigation
burden of proof, major steps in lititgation, statutory agent, importance of trial discovery
cons of adr
very limited discovery bad for customer as there will be reduced leverage, fine print favors business; mandatory adr= waiver of right to trial by jury
answer
a brief reply to the allegations
ADR levels/forms
negotiation, mediation, arbitrions
False imprisonment
restraining of someone against their will without reasonable cause*employer not allowing sick employee go home; nothing to do with jail/prison
pros of adr
faster, cheaper, limited discovery time allowed, considered ongoing business relationship in supply chain
assault
action that caues victim to subjectively fear an imminent battery; can happen without battery; pulling unloaded gun
production of evidence
each side may request to see other sides evidence/relevant docs
Intereference with business relations:
Exists if plantif can prove: there was a contact between plantiff and third part (as in texaco vs pennzoil); defendant knew of contract; defendant induced third party to breach contract or make performance possible; there was injury to the plantiff
pre trial discovery
allows both sides to uncover evidence, encouraging a settlement without trial, or ensuirng few suprises during trial; 90% of cases settled before trial in this phase
contract law
based on breach of agreement between two parties; victim brings case and receives damages *there is no agreement between the parties in tort, only contract law; criminal law is not tort
depositoins
intevew under oath of the part or potential witness, done by opposing lawyer
Slander per se
statements so harsh/potentially damaging that plantiff is assumed to be damaged and doesnt have to prove injury (serious crime, stds, alleged professional incompetence)
conversion
civil law version of theft; benefits because company may sue employee for civil theft without being dependent on the criminal authorities; business wants goods back, thief in jail does business no immediate good
arbitratoin
uses neutral professional arbitrator, but as opposed to mediation, they reach a binding decision, may be mandatory if chosen in advance as the method for dispute resolution; common business practice to add clause to sales contract specifying details of adr
Significance of intentionality/intentional torts
doesnt necessarily require an intent to harm, only to perform the act which cause the injury (throwing brick into a crowd)
intentional infliction of emotional distress
new; behavior causing injury must be extreme and outrageous; must have caused serious emotional harm; some courts allow recorvery for emotional injuyr caused by neglicence
Texaco vs Pennzoil:
texas court of appeals and texas supreme court 1994; large verdict on whether there was a contarct
Zeran vs AOL (4th circ, 1997)
AOL immunity from defamation based on 3rd party posting under communication decency act *3rd parties given immuity; specter of tort liability for staggering amount of info Intrnt Srvce Prvdrs handle, impractical to handle
9 intentional torts
slander, libel, false imprisonment, intentional infliction of emotional distress, battery, assault, trespass to land, conversion, and fraud **know all for exam
famous people have ___ protection in slander/libel cases (ny times vs sullivan); must show ___
less; malice, they know that the statment is false or have have a reckless disregard for truth (didn`t follow fact checking protocol at newspaper)
battery
touching of another person in a way that is unwanted or offensive; touch doesnt have to hurt; doesnt have to be aware its coming, say when sleeping, just has to happen
types of interference with business relations
interference with contract; interference with prospective advantage; violations of lanham act
alternative dispute resolution (adr)
Any other formal or informal process used to settle disputes without resorting to a trial
burden of proof
plantiff must convince jury that its version of the case is correct; civil needs to be by preponderance of evidence (slightly true); criman needs ot be beyond reasonable doubt
libel vs slander
written (think library) vs slander is said
fraud elements
Misrepresentation of material fact, defense knows statement is false, defense must intend deception, plantiff justifiable relies, plantiff is damanged/harmed
Section 3
(31 cards)