Chapter 5-9 Outline

Article I. The US Constitution

1. Preamble
a. Article 1 (Congress) Section 1 (Legislature), Section 2 (House of Representatives), Section 3
(Senate) VP of Senate
i. Section 8 (Powers) necessary and proper clause, letters of marque and reprisal
1. Commerce Clause Interstate Commerce
a. Balancing Test no other viable alternative of health safety and
welfare of general citizens (Intrastate Commerce)
i. Maine v Taylor, The Mud Flat Case
b. Affectation Doctrine
i. Heart of Atlanta Motel, Katzenbach v McClung, Wickard v
Filburn
b. Article 2 (President) Section 1 (Prerequisites), Section 2 (Commander in Chief, treaties, and
vacancies), Section 3 (State of union and disputes between senate), Section 4 (Removed and
Impeached)
c. Article 3 (Federal Courts) Marbury v. Madison

2. Bill of Rights
a. The First Amendment Freedom of Press, Religion, Expression
i. Speech Time Place Manner/Location (Less protected advertising alcohol)
ii. Religion - The Establishment Clause, The Free Exercise Clause
iii. Assembly Limited
iv. Freedom of Press As long as it is true
v. Right to petition the government
b. The Fourth Amendment Procedural Due Process
i. Search and Seizure Plain View Doctrine
1. Probable Cause, Contraband, Admissible
ii. Warrant - Role of the Magistrate from the Affidavit to the judge
1. Exceed scope of warrant Fruit of the Poisonous Tree
c. The Fifth Amendment Procedural Due Process
i. Right to not self-incriminate, right to attorney, Miranda Rights (Custodial confession
only), Right to Speedy Trial
d. The Fourteenth Amendment Substantive Due Process
i. Level of Review, State Must Prove, Type/Right/Class
ii. Congress has also said that they too need extra protection?
1. Strict Scrutiny compelling reason
a. Federal statute Age and Disability
b. The Constitution - Fundamental Rights and Race, National Origin,
Color and Religion
2. Middle Scrutiny Rational reason
3. Low Scrutiny No reason needed
Article II. Torts
1. Intentional Torts
a. Elements
i. Act of Volition Was defendant conscious
ii. Intent Understanding the consequences of ones act
1. (Reasonable Person Standard (Mental) and Eggshell Plaintiff (Physical)),
iii. Damages The tort occurred
b. Torts against people
i. Assault In fear or apprehension of harmful or unwanted bodily contact
1. Immediate Apprehension
ii. Battery Harmful or offensive bodily contact
iii. Intentional Infliction of Emotional Distress Extreme and Outrageous Conduct (Actual
Damages pecuniary damages )
iv. False Imprisonment Confining the plaintiff to a bounded area w/ no reasonable means
of escape (Bounded Area),
1. Shopkeeper Statute Reasonable in term of manner and time
a. Totality of Situation at Hand - Reasonable suspicion, Detained in a
reasonable manner, Detained for a Reasonable time
c. Torts against Property
1. Real Property Land all things attached thereto
a. Fixture Integral part of real property
2. Personal Property Other property than real
ii. Trespass to Chattels (Personal Property) Damaging anothers personal property (Actual
Damages)
iii. Trespass to Land (Real Property) Purposely putting ones foot down on anothers land
1. Nominal Damages Symbolic damages
iv. Conversion (Personal Property) Damaging another persons property so severely as to
warrant payment to the plaintiff of the entire value of the property
d. Defense to a tort
i. Consent Agreement but cannot consent to a crime
ii. Self Defense Minimum amount of force necessary
iii. Defense of property Reasonable amount
iv. Necessity (Public) Protect others person or property
v. Necessity (Private) Necessity for self
2. Unintentional Torts
a. Elements Duty, Breach, Proximate Cause, Damages
i. Duty
1. Statute - a standard duty of care to abide by
2. Reasonable Person Standard How would a reasonable person act
3. Industry Standard Follow what the other companies within the same
industry are doing
4. Prior Notice Defective condition existed but didnt take sufficient effort to
rectify it
ii. Breach of Duty Breached his/her duty of care set by standards of the law
iii. Proximate Cause Direct Relationship
1. Direct Causation The cause is foreseeable
a. Palsgraf Case No Direct Causation
iv. Damages Plaintiff suffered physical, mental harm or both
b. Other Concepts of Negligence
i. Contributory Negligence No money if plaintiff at all negligent (NC, AL, VA, MD,
District of Columbia)
ii. Comparative Negligence Percentage based off of negligence in the defendant
iii. Assumption of Risk Plaintiff assuming dangerous activities
3. Product Liability
a. Elements Breach of warranty, negligence and strict liability in tort
1. Difference between negligence and strict liability is that in negligence, plaintiff
has to show that the defendant fell below the standard of care
ii. Breach of warranty Failure of a promise about the quality of product
1. Express warranties Written or spoken facts
a. Basis of the Bargain If nothing said, no warranty is given
b. Based on a statement of fact Not and not an opinion
i. Puffing - Statements of Opinion not covered by an express
warranty
2. Implied warranty of merchantability Warranty comes with the product
without anything being said and for its ordinary purpose and only applies to
warranties given by a merchant
a. Implied Warranty of Fitness for a Particular Purpose Buyer asks
seller about performance of the product and seller must answer which is
the warranty
iii. Negligence - Duty, Breach, Proximate Cause, Damages
1. Defenses Defendant acted reasonably and did not breach the standard of care
in the industry
iv. Strict Liability 402-A of the Restatement of Torts
1. Elements
a. Product
b. Placed in the stream of commerce
c. Is defective
d. Causes bodily injury
b. Social, Political, and Ethical Ramifications of Product Liability
i. Viewpoints
1. Plaintiffs Three causes of action warranty, negligence, strict liability
a. Attorney Product Liability serves as an important social function
2. Defendants Did everything to test and design a safe product so did not breach
contract
3. Congress Attorneys are using laws to put manufacturers out of business (1/2 of
what is awarded)