BUS LAW 207 FINAL STUDY GUIDE
BUS LAW 207 FINAL STUDY GUIDE 207
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This 25 page Study Guide was uploaded by Shelby Kolb on Saturday June 4, 2016. The Study Guide belongs to 207 at California Polytechnic State University San Luis Obispo taught by Stephen Stern in Spring 2016. Since its upload, it has received 20 views.
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Date Created: 06/04/16
BUS 207 Notes : April 5 : State Constitution can give you more rights than a federal constitution, but can’t give you less. State : Small claims court = less than $10,000 Justice court Superior court (by county) : can be appealed to appellate court . can be appealed again to California supreme court. Can be appealed to US Supreme Court who only hears very controversial cases. Specialty courts Due process = under the fifth and fourteenth amendment rights. Civil procedure that you have a right to to defend yourself. -Substantive due process= rights Criminal = right to a jury. Jury has to have 90-92% belief to convict someone = burden of proof (criminal) More likely than not, easier to proof (civil) Burden of proof and testimony : differences between criminal and civil Bench trial = trial by judge without a jury Jurisdiction= whether the court has rights over parties involved, etc. Common law= judge made law. No written law by any legislator. Teleology = o Egoism; right behavior equals good consequences for individual o Enlightened egoism; follow some basic rules not because there right but rather to help a person in some way o Utilitarianism : Greatest good for greatest number ; determine aalternative actions, estimate direct/indirect benefits and costs each action would produce for each person, select alternative that produces greatest sum total of utility is ethically appropriate Deontology(right of individuals) = o Equal respect of all persons o Some things not done even to maximize utility o Rights have corresponding duties o Considers means Universal truths to ethics = religion, golden rule, libertarianism Virtue ethics= good person does the right thing Laws are derived from history. Legal systems and laws based on what Congress creates Common (case) law= figured out by judges since there was no written law. Based on judicial laws Federal question that violates Constitutional rights or federal law & diverse parties with more than $75,000 damage 2 ways to get to court Civil trial = 2 parties Criminal trial = individual vs. government Model laws = laws created by legislature Uniform laws = April 7 : Notes on Other Cases : 1) IBM and the Nazi Regime WW2 : Track death camps Train shipments Count the # of people : gassed, shot, killed another way, starved, etc. IBM Provided : hardware, software, visits to concentration camps to make sure computers were working accurately 2001 Case : Holocaust survivors sued IBM for profits made when helping the Nazis. Case was dropped. Corporation has a LEGAL DUTY to its shareholders to make duties. 2) Royal Dutch Shell and the Nigerian Delta Shell = drilling for oil (Nigerian delta was the top wetland in the world) Externalities = things that happen to innocent third parties. Not figured out in the business http://www.reuters.com/article/usshellnigerialawsuitidUSBRE90S16X20130130 3) Monsanto and Agent Orange and Vietnam Combine 2 of the most dangerous chemicals available 2.14 million Vietnamese exposed (innocent people) 3 million health problems (birth defects, brain damage, lung cancer) US contracted with Monsanto to carpet bomb Vietnam Case settled in 1984 4) Enron Implosion Enron : energy company . stock peaked at 70 billion dollars. Employees required to buy stock Started selling their own stock because Enron fabricated all their finances Company exploded and filed for bankruptcy Unethical movement by corporation (fabricating finances) 5) BP Petroleum and Gulf of Mexico 4.9 billion barrels of oil leaked 16 miles of coast line 125 miles of Louisiana 8000 animals, $40 billion cleanup Shut down the livelihood of fishers 11 killed $20 billion settlement BP didnt want to spend the money for the recommended 21 centralizers , so they decided 6 would be good enough…. Which resulted in the biggest oil spill in history. Costbenefit analysis ETHICS! → BP determined WRONGLY that the money they would save not buying the extra centralizers would be less than the damages they would have to pay in leaks/etc. April 12 : Punitive damages= punishment costs. Behavior that is so wrong and shows industry that they better not do the same thing, or they will be punished. 6) Grimshaw v. Ford (1981) 119 Cal.App.3d 757 Ford Pinto design flaw leads to 1972 accident 1968 Ford wants to engineer car no heavier than 2000 lbs Missing part of car would cost $11 per car. Car was traveling on freeway and was rearended, exposed bolts on part of car that would puncture gas tank caused fire in car due to faulty design. Costbasis analysis = car designers had tested and knew about problems that could occur, but costs for company outweighed societal costs to fix this. o $137 million cost to change faulty design VERSUS $49.5 million cost in lawsuits due to wrongful death claims Family of car (Grimshaws) → driver killed and 13 year old boy passenger disfigured. $2.5 million in actual damages. $125 million in punitive damages, then reduced to $3.5 million. o Why were punitive damage charges reduced?? → looked back to prior case with BMW and believed there needed to be a relationship between actual and punitive damages. o 3.5 million was such a small number that it was almost meaningless in sending a message to the wrongdoers. April 14 : Ethics Hypothetical : Duty to act in good faith. Court Jurisdiction Person Property o In rem jurisdiction = power of a court over the property or status of an out-of-state defendant when that property or status is located within the court’s jurisdiction area. o Quasi – in rem jurisdiction = out-of-state defendant’s property that is within the jurisdictional boundaries of the court. It applies to personal suits against the defendant in which the property is not the source of the conflict but is sought as compensation by the plaintiff. Subject matter o Probate = area of law that deals with handling someone’s estate. (who gets what when someone dies) Long-arm statue o Court where issue occurred has jurisdiction over you (if you get into an accident in Florida, they can take you from California) State law Federal law(court) Federal question Diversity = 2 or more parties from different states Venue = county where accident occurred (where case will be handled) 7) Pennoyer v. Neff, 95 U.S. 714 (1878) John Mitchell, attorney, who helped Neff get land grant in Oregon. Mitchell = resident of Oregon. Neff = from California Neff doesn’t pay some legal fees to Mitchell who sues Neff in Oregon circuit court Mitchell puts ad in newspaper → notice of lawsuit Neff was unaware of being sued because he was in California so he didnt show up to court. Mitchell wins by default because Neff doesnt show up. Neff owes Mitchell money. Mitchell wants to get money from land that Neff had bought. (ceases it by right of court) Mitchell sells land he ceases to Pennoyer Mitchell claims that he can sue Neff in Oregon oQUASI IN REM Oregon had not issued land ownership to Neff! HE DID NOT OFFICIALLY OWN LAND AT TIME LAWSUIT WAS FILED. Neff sues Pennoyer → pennoyer loses land, mitchell loses $, Neff gets land back Entire case basically undone. April 19 : th th 5 amendment due process rights & self incrimination(I plead the 5 ) Pennoyer had a right to know he was being sued. `14 amendment prevents government from restricting the basic rights of citizens Diversity jurisdiction = requires 2 or more parties from different states & 75,000$ + in controversy Federal law does not have common law> suppose to use state law US Supreme court doesn’t want people searching for states where they can win Hertz Corporation v. Friend (in textbook, Ch. 2) o Hertz violated California labor law o Petition to federal court diversity of citizenship (corporation in NJ, employees in CA) o Hertz= New Jersey corporation o “Nerve Center” is in New Jersey , which means it is the main place that the entity is based. o Federal judge will still use California laws o Diverse jurisdiction always call for federal judge 2) J.E.B. v. Alabama EX. REL. TB (in textbook, Ch. 2) o Plaintiff, J.E.B., challenged the lower courts’ decision allowing Respondent, the state of Alabama, to use its peremptory challenges to remove all the male jurors. o Strikes (voir dire= when picking jury) as many as you want for cause o Prove that defendant was father of child. o State of Alabama tries to get all women jury. o The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution prohibits a party to use their peremptory challenges to remove jurors based on gender. o Facts. Respondent, on the behalf of a mother with a minor child, filed against Petitioner for paternity and child support. During jury selection, Respondent used their peremptory challenges to remove the male jurors, reasoning that female jurors would be more sympathetic to a woman trying to collect money from a delinquent father. Petitioner challenged the challenges, arguing that removing jurors based upon gender is a violation of the Equal Protection Clause. The Alabama courts rejected Petitioner’s claim, reasoning that discrimination based upon gender is not protected like race. Issue. The issue is whether the Equal Protection Clause prohibits intentional discrimination in jury selection based on gender April 20 ; Ripeness = whether the case is ready/basis to sue. Standing = real parties of interest have the right to sue (not someone’s friend, etc.) April 26 ; Administrative law Agencies = handle real specific areas of law. Create laws under state and Congress o Prosecutors and administrative judges o Federal level headed by members of President’s cabinet or selected by president and approved by Congress. CASE : National Cable & Telecommunications Assn. v. Gulf Power Co. o Law is always behind technology. o New technology (wireless) fell under Pole Attachments Act Federal Communication Commission decision CASE : Yan Ju Wang v. George Valverde o DMV claimed that Yan Ju Wang was cheating on class B license exam, so they wanted to take away her class C license (regular license) o DMV (state agency created by governor) has power to revoke any license o Case was appealed and it was affirmed that Yan Ju Wang would get to keep her license o Agency overstepped bounds and used power improperly CASE : FCC v. Pacifica o Pacificia = radio station owner. o 7 dirty words that you cant play on the radio or tv = Carlin has satire to dirty words, repeats words over and over, o FCC =power agency files report against Pacifica for playing words o George Carlin (1 amendment freedom of speech) o Case goes to US Supreme Court. Major 1 amendment, freedom of speech case. o US Supreme Court determines : time, place, manner 7 dirty words can be played at certain times. o FCC does not control Satellite radio. CASE : Higher Education Act o Private loans= no special payment plans. No forgiveness o Consolidation = federal loans combined o Federal Trade Commission= oversees that there is no fraud/scams. o Federal loans = Subsidized > government (Department of Education) covers interest while you are in school (Deferment) Unsubsidized > interest not covered CASE : Christy Brzonkala v. Antonio J. Morrison o Brzonkala filed complaint against Morrison and James Crawford for raping her at a Virginia Tech campus party. o Morrison was initially suspended for 2 semesters (found guilty) but punishment was ultimately set aside. o Brzonkala pursued to sue Morrison, Crawford, and Virginia Tech in FEDERAL Court for violating the Violence Against Women Act. o “Morrison and Crawford moved to dismiss this complaint on the grounds that it failed to state a claim and that the act’s civil remedy was unconstitutional.” o “The district court dismissed the complaint on grounds that Congress lacked authority to enact the section. The US Court of appeals affirmed the district court’s conclusion.” o Significance = Court limits Congressional authority under the commerce clause. o On May 15, 2000, the United States Supreme Court decided that Congress had no authority to provide victims of gendermotivated violence access to federal courts. In a 54 ruling, the Court decided that the VAWA’s civil rights remedy was unconstitutional and that Congress could not regulate intrastate criminal conduct under the commerce clause, but rather that such issues should be left to the states. The Court found the civil rights remedy to be beyond Congress’s authority to enforce the 14th Amendment because it was directed against private individuals, not state actors. Many consider the United States v. Morrison ruling as a historic loss for women. April 28(Chapter 4 Constitutional Law) ; CASE : Granholm o State argues that it can make laws to sell wine with 10 amendment rights o 18 amendment = Prohibition . 21 amendment repealed 18 . h o Interstate commerce (transferring selling wine to another state) belongs to federal government. o DORMANT commerce clause ^ (dormant means there is no law on the issue) o Treating wineries differently. State cannot discriminate against outofstate business or treat them differently than instate business o Federal government requires in state and out of state be treated the same. No advantage for either. CASE : Bad Frog Brewery v. New York o Label with frog flipping people off. o New York Liquor Authority tells them they have to get rid of logo st o Brewery takes it to court because “they have 1 amendment freedom of expression” o Liquor authority power VS. first amendment rights?? o Central Hudson Test deals with commercial speech. Four part test that deals with : Does regulation directly advance government interest Is it more extensive than it needs to be o Strict Scrutiny Test whether there is a compelling government reason for a law, and if the law is tailored to deal with that issue. HARD to pass (discriminatory) o Intermediate Scrutiny Test based on gender, age. Whether there is an important government reason for law and whether law controls issue. o Rational Basis Test economic, zoning laws, curfew. Government typically wins. Prove that government laws are rationally related to a legit government purpose. CASE : Lochner(Superior Court protect judicial rights) 1905 o NY Law; Bake Shop Act= not allowed to work more than 60 hours/week o Right to contract VS. state’s 10 amendment power to create laws to protect health, safety, welfare. o Supreme Court saw that law was bogus. (bake shop labor not severe) o Right to contract WON over 10 amendment th th o 14 amendment applies due process to state, 15 amendment applies due process to federal. CASE : Plessy v. Ferguson (1896) o Louisiana ; separate but equal st th st o Plessy bought 1 class train ticket. 7/8 white. Refused to leave 1 lass car when told to. o Declaration of Independence states “all men created equal,” o Supreme Court justice didn’t find it illegal. Brown v Board of Education o landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students to be unconstitutional. o Plaintiffs argued that school segregthion was unfair under the Equal Protection Clause given in the 14 amendment o The decision overturned the Plessy v. Ferguson decision of 1896, which allowed statesponsored segregation, insofar as it applied to public education. Handed down on May 17, 1954, the Warren Court's unanimous (9–0) decision stated that "separate educational facilities are inherently unequal." o As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This ruling paved the way for integration and was a major victory of the Civil Rights Movement. However, the decision's fourteen pages did not spell out any sort of method for ending racial segregation in schools, and the Court's second decision in Brown II only ordered states to desegregate "with all deliberate speed". o Strict scrutiny test o Korematsu v. U.S. (1942) o Government worried about conspiracy to bomb pacific coast/California border. o U.S. cities v. Japanese o FDR creates executive order that grants military power to imprison Japanese living in US. (Internment camps) o STRICT SCRUTINY TEST discriminatory May 3(Constitutional Law cont) ; Heart of Atlanta Motel vs. U.S. o the U.S. Congress could use the power granted to it by the Constitution's Commerce Clause to force private businesses to abide by the Civil Rights Act of 1964. o Motel owner argued that government was taking away his property ownership rights and going against his 13 amendment rights by making “him a slave to the governments requirements” Commercial speech little less protected then pure speech. Commercial speech= central Hudson test. Using speech for advertising/to sell something. Pure speech = strict scrutiny test. Personal beliefs/freedom of expression. (music)(pretty much political speech) Rational Basis Test= The level of judicial review for determining the constitutionality of a federal or state statute that does not implicate either a fundamental right or a suspect classification under the Due Process Clause and the Equal Protection Clause of the Constitution. When a court concludes that there is no fundamental liberty interest or suspect classification at stake, the law is presumed to be Constitutional unless it fails the rational basis test. Under the rational basis test, the courts will uphold a law if it is rationally related to a legitimate government purpose. The challenger of the constitutionality of the statute has the burden of proving that there is no conceivable legitimate purpose or that the law is not rationally related to it. This test is the most deferential of the three levels of review in due process or equal protection analysis (the other two levels being intermediate scrutiny and strict scrutiny), and it requires only a minimum level of judicial scrutiny. E.g., courts use the rational basis test when analyzing the constitutionality of statutes involving curfews, economic/tax increases, age discrimination, disability discrimination, or the Congressional regulation of aliens. Intermediate Scrutiny= Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases. Strict Scrutiny= Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is "strict in name, but fatal in practice." For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty. Griswald v. Connecticut 1965 o Griswald= executive and medical director of Planned Parenthood. Arrested and charged for giving information about abortion. o 1879 Connecticut law stated : NO ABORTIONS and NO COUNSELING. Punishment for breaking 1879 law? no less than $40 fine, no less than 60 days in prison. o Case goes to US Supreme Court. Court REJECTS 1879 law and finds it in violation of the 1 , 14 , and 9 amendment. o 9 amendment Penumbras and emotions. Whatever wasn’t explained specifically in the first 8 amendments is reserved in the 9 . Privacy rights!! o Bowers v. Hardwick o Hardwick = male companion arrested for performing oral sex. o Bowers= officer that barges in on Hardwick after ticketing him for public drinking. o 1986 Georgia Law no sodomy sex o Hardwick argues that it is violating 14 Equal Protection clause for punishing gay sex. o Case goes to US Supreme Court th After Griswald and 9 amendment… o Supreme Court upholds sodomy law. All persons, married or not, no oral or anal sex… only really held for gay. Court argues that there is no fundamental right to sodomy. o Lawrence v, Texas 2003 o Lawrence was arrested for sodomy. o Argued for violation of Equal Protection Clause o Supreme Court strikes down sodomy law because you have a fundamental right to privacy. Warren and Brandeis (1890) > Right to Privacy (You can now SUE under these) o Unreasonable intrusion= if someone peers thru a telescope at you through your window. o Public Disclosure of Private Facts= if you publically tell something about another person. o False Lights= if newspaper says something about the WRONG person and doesn’t fix it right away. o Misappropriation of Name or Likeness= make it seem like a celebrity supports or promotes a product May 5 : US v. Windsor o Windsor and partner married in Canada. (both from NY) o Defense of Marriage Act= heterosexual, don’t ask don’t tell. o Windsor dies , but partner is denied any military benefits from death because of DOMA o Case goes to US Supreme Court and does NOT uphold federal statue. o Partner HAS a right to get same rights and federal taxes as if they were heterosexual couple. Obergfell v. Hodges 2015 th o 14 samesex couples argued 14 amendment due process and equal protection clause violated o Ohio, Michigan, Tennessee didn’t recognize same sex marriages o Court decides marriage is fundamental right to all MIDTERM: o Scantron, pencil, one piece lined paper o 100 questions multiple choice and T/F ; o 60% daily double questions!! 40% things covered in class (cases, etc.) o 1 or 2 short essays … o STUDY Brown v. Board o 3 x 5 card CAN BE TYPED REVIEW: Procedural due process=formalities you get to defend yourself. Substantive due process= laws to defend yourself. (right to life, liberty, and property) POST MIDTERM May 17: Chapter 5 Criminal Law and Business ; Mens Rea = the mental state accompanying a wrongful behavior. Actus Rea = a wrongful behavior that is associated with the physical act of a declared crime. Petty crime= small fine or imprisonment for less than 6 months. Misdemeanor = county jail up to a year. Felony = jail for year or more. White collar crime = crime committed by person of responsibility, and high social status in cause of corruption. Illegal search and seizure = 4 amendment. Probable cause= more likely or not that a person has committed a crime. Exclusionary rule = anything from an illegally searched item cannot be used against you. SIVA= Search Incident Valid Arrest Strict Liability Crime = doesn’t need mens rea. Parking in red zone. RICO= Racketeer Influenced and Corrupt Organizations Act : U.S. law that provides extended penalties for criminal acts performed as part of an ongoing criminal organization. CASE : Terry v. Ohio 1968 o 2 people late at night walking around a building 24 times. (looked like they were going to rob it). o Officer comes over and starts padding down suspicious people.. Violation of illegal search?? o “Terry Stop” when an officer stops you, pats you down. Must be at night. Officer must feel in danger. You can ask the officer to leave. o Supreme court claims LEGAL search. CASE : Miranda v. Arizona o Interrogated without knowing his rights of remaining silent and rights to an attorney. o Miranda was arrested at his home and taken in custody to a police station where he was identified by the complaining witness. He was then interrogated by two police officers for two hours, which resulted in a signed, written confession. At trial, the oral and written confessions were presented to the jury. Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession. o Supreme Court affirms that defendant MUST be informed of 5 amendment rights. CASE : US v. Leon 1981 o Police in Burbank received a tip identifying Patsy Stewart and Armando Sanchez as drug dealers. Based on surveillance/info from second informant. (Detective writes affidavit and judge issues search warrant) . o Detective gets information from second informant; but the info. They had was bogus. o Affidavit= signed document that says facts are true to your knowledge. Statement of what you know to be true. o Magistrate= judge o Search finds drugs. o Defendant (drug dealers) attorneys argue EXCLUSIONARY RULE o Search warrant was found to be invalid because the police lacked probable cause for a warrant to be issued. o Evidence obtained in search was UPHELD ANYWAY, because the police performed the search in reliance on the warrant (acted in good faith). o Case becomes known as GOOD FAITH EXCEPTION to exclusionary rule. CASE : US. V. Svete o Life insurance policies ; (bought as investments) o Viators = people with terminal illnesses who sell to third parties, investors get $$ on death. o Life expectancy, age, health condition…. o $100 million worth of policies o Doctors made up bogus statements o Investors who bought these financial interests from agents of Svete and Giradot testified at trial that the sales agents made fraudulent statements and provided false statements regarding life expectancies of viators. o “Does crime of mail fraud require proof that the scheme be capable of deceiving a reasonably prudent person??” o The defendants’ appeathto not include the jury instruction about mail fraud was affirmed. The 11 circuit overruled the precedent of United States v. Brown and ordered a new trial. o Case shows what prosecutors must prove in a mail fraud case. This theory is important to prosecutors because it is important for them to know how to use the theory effectively. Highlights the importance of relying on precedent that is consistent with a statue’s plain language. MAY 19 : CASE : U.S. v. Leon Magistrate had no knowledge of the falsity of the documents submitted in an affidavit by detectives Search warrant required under fourth amendment * CASE : U.S. V Park (white collar crime) Food corporation president was charged because food was not up to standards under food safety act. There were rats in the warehouse. Delegated responsibility and admitted he had a warning letter Supreme court used the responsible person test the president was PERSONALLY liable * Torts = Torts are Personal injury cases under the concept of negligence Intentional tort mens rea (intent) and actus reus (physical act) * Negligence = Party needs a responsibility to you or your property and must have breached their responsibility to have negligent standing in court Strict liability no need to prove responsibility, i.e.. A nuclear powerplant blows up and kills people Defamation Per Se = libel or slander Defamation hold someone up to hate. Ridicule or scorn. (actual malice, truth is a defense) Disparagement: slander that causes an economic loss for a business. EX: o Texas meat company sued Oprah for saying she wouldn’t eat meat. o If you don’t have a celebrity (name, brand) without consent they can sue you. Missapropriation of name and likeness False light Unlawful Intrusion U.S. Supreme Court *CASE : Katco v. briney 1971 Ed and Burtha inherited unoccupied farmhouse. Property sustained damages from multiple breakins. They set up a shot gun boobie trap to a door Katco is shot in the leg(after opening door) and sues for 30 grand in damages : o Sues homeowner for tort of assault and battery. Court holds that you cannot use deadly force to protect property *CASE : Palsgraf v. Long Island Railroad Co. Man drops package of dynamite after running after the train and shrapnel hits Mrs. Palsgraf Mrs. Palsgraf sues the rail road railroad had duty or cause of injury. Was plaintiff in area at risk or wrongdoers behavior? Was railroad liable? Foreseeability= was is forseeable that this guy would have dynamite? Unforseeable. By helping this person on the train in dangerous condition, the train would be liable, but it was not forseeable. Judge Cordazo said there was not a foreseeable reasonable expectation that this incident would occur Judge Andrews concluded that the Railroad needed to have Duty, Breach, Causation, and Injury Chapter 6 Tort Law and Chapter 7 Real, Personal, and Intellectual Property: CASE : The Queen of Dudly v. Stephens o Defendants= Thomas Dudley & Edwin Stephens, Mr. Books. o victim: Richard Parker all 4 men stranded on boat for several days. Defendants decide to sacrifice Mr. Parker for good of the rest. o “A person may not sacrifice another person’s life to save his own.” o Dudley and Stephens speak to Brooks about sacrificing Parker (while on the boat after several days of starvation). o Brooks dissented. o Dudley suggests that if no vessel appeared the next morning, they would kill Parker. With the assent of Stephen the next day, they killed Parker. o Isuue: “Does the defense of necessity permit the killing of one person to save others?” o Lord Bacon provided some authority for the existence of the defense of necessity to lesser crimes. o Queen’s Bench “no court had ever accepted necessity as a defense to murder and for good reason.” o Lord Coleridge “There is never any absolute or unqualified necessity to preserve one’s own life. Once such a defense is allowed, there is no telling what atrocious crimes may be justified by the excuse of necessity.” o Decision?: = Necessity is never a defense to murder. CASE: Merrill v. Navegar : o Ferri visits pawn and gun shop in Nevada looking for gun “for target practice” Tec9 illegal in California (where Ferri is from) o Gian Ferri enters office building in San Francisco armed with 2 semiautomatic assault weapons manufactured by NAVEGAR. o Open fires and kills 8 people, injures 11 in office building. o Merrill represents people killed by Gian. Sues Navegar. Common law, negligene per se, strict liability. Negligence per se = defendant has violated a statue enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs. Against Navegar. End up getting rid of this argument in case. Common law / negligence = duty, breach of duty, etc. Plantiff argues that NAVEGAR would be liable under strict liability because guns are so unreasonably dangerous. Strict liability= don’t have to prove anything except that instrument is inherently dangerous. California Court finds guns don’t kill people, people kill people. Risk Utility test= benefits of having gun are more important than the risk the gun creates. o Navegar = creator of Tec9 o Cant sue a gun manufacturer under strict liability. CASE: Hustler v. Falwell : o Hustler magazine Xrated. o Hustler writes “parody” ad about Jerry Falwell talks about his first time. o Jerry Falwell = very followed, rightwing Conservative. o Falwell sues Hustler magazine for defamation. o Defamation= hold someone up to scorn. Has to be read or heard by a third person. Libel= published in printed form. Slander= orally. o Defamation per se= inherently harmful. Examples : chastity(women’s sexual act) , loathsome disease, business as a crook/fraud. o Falwell; Public person must argue actual malice false, Larry Flint (owner of Hustler magazine) intentionally wrote article to cause harm to Falwell. o Court finds PARODY = first amendment of speech, is DEFENSE to defamation. So outrageous that nobody would expect it to be true. o Parody TRUMPS defamation. CASE : Sandra Morris v. Walmart Tores, Inc. o Morris slipped on floor at Walmart. Spot box leak?? o Negligence diversity of citizenship. D o Walmart argues that Morris is lying in order to get money from lawsuit, doesn’t have evidence of slipping. o Res ipsa loquitur= doctrine that allows the judge or jury to infer that, more likely than not, the defendant’s negligence was the cause of the plaintiff’s harm, even though there is no direct evidence of the defendant’s lack of due care. o Walmart wants summary judgment from judge. o Morris has evidence from new machine in place. Brings up dispute, cant do summary judgment. CASE : Clark v. Chrysler Corporation o No seat belt, ejected from seat upon impact. Door latch not working properly. o Clark sues Chrysler for $470,000 in actual damages $3 million in punitive damages. Chrysler KNEW that latch was faulty but didn’t do anything about it. o Court finds Clark and Chrysler each 50% responsible for damages Clark not wearing seatbelt, Chrysler implementing faulty latch. o Contributory negligence = o Comparative negligence = doesn’t matter what % responsible you are. CASE : Kelo v. The City of New London o Eminent domain take property for economic development. (the slums of New London) o People in slums own homes worth $40,000; wont be able to own a home for that price anywhere else. o US Supreme Court allows Kelo to take private property for “economic development” , sees it as public good CASE : Toys R. US, Inc. v. Canarsie Kiddie o Toys R US obtained a trademark for “Toys R. Us” and aggressively advertised its products, children’s toys, and clothing, in stores across the country. o Defendant, Canarise Kiddie Shop, opened 2 clothing shops called Kids R Us within 2 miles of a Toys R US shop. Never tried to register its name. o Toys R Us sues for trademark infringement in federal district court. o Issue: Does Kids R Us infringe on the mark Toys R US? Court considers … Strength of the senior user’s mark generic, descriptive, suggestive, or arbitrary/fanciful. : Plaintiff’s mark has strong secondary meaning as a source of children’s products, so court determines MEDIUM strength. Degree of similarity between 2 marks Toys R us uses CAPITALIZED R, whereas Kids r Us uses lowercase. Proximity of the products both sell children’s clothing and direct competitors. Likelihood that plaintiff will bridge the gap Toys R Us will expand sales to compete, consumers will assume 2 companies are related. Evidence of actual confusion proof that consumers are confused, senior user has stronger case. Junior user’s good faith owner of Kids r Us asserted that he did not recall whether he was aware of the plaintiff’s mark. Court does not believe him and concludes that the defendant adopted the Kids r Us mark with knowledge of the plaintiff’s mark. Quality of the junior user’s product court is much more concerned about possible violation if the quality of the clothing is poor because such clothing would then reflect poorly on the senior user. Dilution= when quality of competitor is low.. dilutes value of senior name. Customers associate lower value product from junior company to senior company. Sophistication of the purchasers lesser degree of care in evaluating clothes. Junior user’s goodwill junior user didn’t expend a lot of money in advertising. o Judgment for plaintiff. CASE : Gaylord v. US 1990 o Frank Gaylord, nationally known sculptor, wins competition and begins working on Korean War Memorial. o 1995, John Alli took photographs of the memorial as a gift, then sells photos. o CooperLecky (contractor) allowed this, and had Alli pay them 10% royalty. o 2002 – US postal service decides to use photo as a stamp. Do not get permission from Lecky OR Gaylord. o Gaylord SUES government in 2006 for copyright infringement in Court of Federal Claims. CASE : Sony v. Universal o Sony makes Beta Max – 2 video recorders in one. Copy what is on TV and burn a copy. o Universal says against Copyright Protection act, only they can reproduce. o Commercials would just be FAST FORWARDED advertisers upset! o Case goes to US Supreme Court Court finds Sony contributory negligent; consumers are the ones liable for infringement, not Sony. o There are noninfringing uses. Court allows Sony to keep producing Beta Max. CASE : A & M v. Napster o Napster= file sharing network. o A & M records (one of many record companies) o Search album…if someone else on server has it, they can share it to you. o Fair Use doctrine= defense to infringement.(educational use, editorial reviewing piece, etc) Purpose/character of use, nature of copyrighted work ,effect on market sales, how related it is to original o Court of appeals determines server allows for exploited copies of use.. Napster is infringing on rights. CASE : MGM v. Grockster o Grockster creates new music sharing system where files are sent from COMPUTER TO COMPUTER, instead of via a server. o Sean Parker runs Grockster. o US Supreme Court Grockster LOSES. o Transfer of copyrighted material is still illegal. CASE : Mattel v. MGA o Copyright infringement & trade secrets. o Bratz dolls (former Mattel employee) created while still employed by Brian while still working for Mattel. Pitches idea of Bratz to MGA o MGA tries to keep this a secret, but Mattel finds out. o US Supreme Court awards $100 mil to Mattel, but decision is overturned. o 8 years….. $120 mil finally awarded to lawyers. o Competitors keep you out of market while fighting lawsuit ? o Mattel FIRST sues MGA because they own copyrights to Bratz Dolls since employee was still hired. o MGA sues Mattel. Mattel employees disguised as interested customers during trade shows. Misrepresented who they were to achieve trade secrets. (FRAUD) VOCAB Comparative negligence = defense accepted in some states (California) whereby the defendant is not liable for the % of harm that he or she can prove is due to the plaintiff’s own negligence. Contributory negligence= defense to negligence whereby the defendant can escape all liability by proving that the plaintiff failed to act in a way that would protect him or her from an unreasonable risk of harm and that the plaintiff’s negligent behavior contributed in some way to the plaintiff’s accident. Fee simple absolute= an ownership interest in which the holder has exclusive rights to ownership and possession of the land; the most comprehensive type of estate. Conditional estate= ownership interest in which the holder has the same interest as that in a fee simple absolute except that this interest is subject to a condition. Life estate= an ownership interest in which the holder has the right to possess the property until her or his death. Future interest= a person’s present right to property ownership and possession in the future. Leasehold= possessory interest, but not an ownership interest, transferred by contract. Easement= irrevocable right to use some part of another’s land for a specific purpose without taking anything from it. Profit= the right to go onto someone’s land and take part of the land or a product of it away from the land. License= a revocable right to temporarily use another’s property. Adverse possession= an involuntary property transfer in which a person acquires ownership of property by treating a piece of real property as his or her own, without protest or permission from the owner. Condemnation= the legal process by which a transfer of property is made against the protest of the property owner. Voluntary transfer of property requires : delivery, donative intent, and acceptance. Inter vivos gifts gifts made by a person during his or her lifetime. Gift causa mortis gift that is made in contemplation of one’s immediate death. Involuntary transfer of personal property : lost property, mislaid property. Fungible goods = goods for which one unit of the good is essentially the same as every other unit. Trademark= distinctive mark, word, design, picture, or arrangement that is used by a producer in conjunction with a product and tends to cause consumers to identify the product with the producer. o Trade dress= the overall appearance and image of a product. Copyright= protection of the expression of a creative work, protection of the fixed form that expresses the ideas. o Must be fixed, original, and creative. o Fairuse doctrine= a portion of a copyrighted work may be reproduced for purposes of criticism, comment, news reporting, teaching, scholarships, and research. Patent= protection that grants the holder the exclusive right to produce, sell, and use the object of the patent for 20 years; can be obtained for a product, process, invention, machine, or a plant produced by asexual reproduction. o Must be new, useful, nonobvious Tying arrangement= illegal agreement in which the sale of one product is tied to the sale of another. Crosslicensing= illegal contractual agreement in which two or more parties license each other to use their specified intellectual property only on the condition that neither licenses anyone else to use the property without the other’s consent. Trade secret= process, product, method of operation, or compilation of info. That gives a businessperson an advantage over his competitors. More Notes on Chapter 7 : Property rights ; must have actual control of or constructive possession. Lost & Mislaid Property = still owned by person who lost/mislaid it. Finder had rights to own against everyone else BUT true owner.. except if guilty of trespass and then no right to possess. o Lost involuntarily parted with, not know location. (storm pulled boat from dock) o Mislaid intentionally placed somewhere but forgot Abandoned Property= owned by first person who exercises control over it with intent to claim as his/her own. Treasure trove= occurs when owner cant be determined. Bailments= possession of goods by an individual who is not the owner. Bailor v. bailee REAL Property = every state has jurisdiction over the land within its boarders. Different types of owernship. Freehold = uncertain duration person in possession of freehold estate has seisen(right to immediate possession) o Fee Simple Absolute; control and do whatever wanted with real property. o Life estate; duration of ownership is own life or life of another, and can use the land but not cause waste alienable during term of life estate (transferrable) Non Freehold= property interest for a limited duration o Tenancy for Years o Year to year o Tenancy at will (end anytime by either party) o Tenancy in sufferance (returns property without landlord’s consent) o Adverse possession (consistent, open and notorious claim to real property). Lives on land for more than 20 years; by law it is theirs. Concurrent estate= owned or possessed by 2 or more people simultaneously. Joint tenancy= acquired by 2 or more people at same time. (JTWROS) Tenancy by the Entirety= similar to JTWROS but never disposed of without the other; each person owns the undivided whole of the property. Tenancy in Common= 2 or more possess concurrently; each has a definable share of property. Eminent Domain= government has right to acquire privatelyowned land thru Eminent Domain to take from private party for public use. Balanced against 5 amendment right for private person to receive just compensation. INTELLECTUAL PROPERTY : Trademarks= words, symbols, phrase, color, shape. Distinctive to connotate source. o USPTO (federal) Registration thru US Patent Trademark Office; in commerce or will be in commerce within 6 months; search for existing registered marks. If succeed, statutory protection with built in damages, attorney fees, and can seek registration into other World Intellectual Property Organization (WIPO and Madrid Protocol) member countries; renew trademark every 8 YEARS. o No descriptive marks. o Common law trademark just go into business, don’t register anything. o state trademark can be registered in state Copyrights= fixed in tangible medium of expresision. Protects literary, dramatic, musical, musical, pantomimes, pictorial, motion picture and other visual works, sound recordings, and architectural works. NOT an idea, procedure, process, system, method, concept or principle. o Need expression of human author fixed in any tangible medium of expression. o Provides right to : reproduce, derivative works based on CR work; distribute copies, and publicly perform literary, musical, dramatic, choreographic, pantomimes, pictorial, graphic and sculptural works, and motion pictures. o Duration: life of author + 70, 95 or 120 years, depending on nature of authorship and year produced. o Digital Millenium Copyright Act (1998)= move CR to ditial age in sync with WIPO protection and use worldwide. o Terrestrial v. Satellite Radio and Royalties o First Sale Doctrine permits the purchaser of a legal copy of a copyrighted work to treat that copy in any way desired, as long as the copyright owner’s exclusive copyright rights are not infringed o Safe Harbor for Internet Service Providers if someone says something that is defamatory online, Facebook is not reliable. Patent: Patentable subject matter Utility or for design Novel (new) Non obviousness Enablement (having some functional use) Utility patent= you own that patent for 20 years. Design = entitlement for 14 years. copyright (literary, architectural, sound recording, sculpture) some sort of work created by someone(human). Lifetime of creator/author PLUS 70 years. Right to reproduce, sell, create derivative of it (finding dory, etc). trademark (symbol, word, color combination that designates where product or service derives from) Tells customer who it comes from and has secondary meaning. Can own forever (renewed) Patent ; 14 or 20 years. Technology… Miranda v. Arizona police have a duty, once arrested, to inform you of your 4 amendment right (search), right to remain silent, attorney, th th (5 and 6 amendment) US v. Svete Jury is given task to find guilty based on instructions given to them (what evidence is needed to convict people). Defendants wanted Jury to use “sophisticated person” instead of a reasonable person. Grockster case versus Napster case Napster= SERVER. Grockster= computer to computer. “Per se” Speeding ticket. Negligent per se. 4 really bad things to talk about. Defamation per se. Condemnation condemn a property if its nonfunctional to get it removed. Eminent domain buy private property for public use.
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