Dr. Dawn D. Bennett-Alexander firstname.lastname@example.org
Chapter-End Question Answers
1. Constitutions, statutes, judicial law, common law, administrative regulations, executive orders.
2. Legal positivism - Law is determined by sovereign. Legal realism - The law should follow what people actually do, rather than what people establish as written law. Natural law - Certain laws of nature exist, and all laws passed must be in conformity with those prinicples. Sociological theory of law - Law should reflect a balance between the competing, constantly shifting interests of society.
3. Precedent means decisions previously rendered by a court. Stare decisis is the theory requiring that precedent be used to determine the outcome in cases like the one presently before the court at the moment.
4. Executive, legislative, judicial.
6. Substantive, procedural
7. Jettie's attorney would likely bring a negligence action against Ratliff Shipping, Inc. and Bunn. While Bunn was the one driving the truck, he was doing so while in the scope of employment with Ratliff Shipping, and therefore Ratliff Shipping would be vicariously liable. Jettie would allege that Bunn had a duty to meet a reasonable standard of care for someone driving prudently behind another person and failed to meet that duty when he rear-ended her. She would further allege that his failure was the proximate cause of her injuries.
8. Bill and Ann can find out what agency is issuing the regulations, what type of opportunity to be heard is being provided, and participate in that process. They may not change the ultimate outcome, but they will have given their input.
9. Law is an absolute that must be obeyed, or it is violated. Equity is not a set of absolutes, but, rather, a balancing of the equities of the specific situation. There must be a violation of law alleged to go to a court of law for relief. There need not be a violation of law to go to a court of equity.
2. False. Due process does not apply to most private situations, but rather to actions by the government.
3. True. Congress does not have police power, yet by using its power over transportation funds, it can withhold funds from states that do not raise the drinking age to 21.
4. Yes, the city can legally pass the prohibition on 24-hour businesses under its police power. Chris and Linda can try fighting the law by demonstrating that it is not rationally related to the city’s goal of keeping down police protection costs; by showing that keeping down police protection costs is not a legitimate state interest; by showing that there are other, less intrusive ways to accomplish the goal if the goal is found to be legitimate; by showing that the classifications make little or no sense, because bars are allowed to stay open, when, in fact, given the nature of their business, they do not provide the necessary kind of service that health care facilities and gas stations do.
7. No. The power of the federal government to tax is often used as a means for the government to do indirectly what it cannot do directly. Here, the government could likely not constitutionally require employers to do what it is requesting, yet it may encourage them to do so by providing financial incentives that employers can take or leave, as they see fit. This is permissible.
8. It depends. Because this is a regulation promulgated by an administrative agency, certain rules must be complied with in promulgation. State administrative agencies generally operate under administrative procedures acts, just as the federal government agencies do. Among other things, such administrative procedures ensure that due process is kept intact when the regulatory function is taken on by an administrative agency. If the reason that Drew's knew nothing of the regulation was not inattention but that the regulation was promulgated without following proper procedures, Drew's may have an argument for denial of due process if the agency did not provide due process by some sort of notice and an opportunity to be heard. This is often provided by notice through the state's counterpart to the Federal Register, generally called the state register.
9. Because the ordinance affects business, the challenge to the ordinance based on a denial of equal protection would be analyzed under the rational basis test. Under the test, if the state can show that the ordinance is rationally related to achieving its statutory purpose, then it will be allowed. This is so even if the ordinance is not necessarily the best approach to the issue of decreasing domestic violence. If it is debatable, based on all the considerations of the governing body in considering the issue, it will be upheld. Even though viewing the games in places such as churches, private homes, and schools could also cause domestic violence.
10. The state's police power is very broad. Under it the state has the authority to enact legislation
that regulates the health, safety, welfare and morals of its citizens. Here the ordinance did not ban televisions in commercial
establishments altogether, but, rather only at times during which research
indicated caused an increase in domestic violence. As
such, the ordinance would probably stand.
1. Civil cases are brought by the party injured, for money damages (generally; no jail or prison time is involved; the initiator of the suit pays for it; and the burden of proof is generally a preponderance of the evidence. Criminal cases are brought by the state for punishment of the perpetrator by jail, prison time, and/or fines; the state pays for the suit; and the burden of proof is beyond a reasonable doubt.
2. No, Regine's advice is not good advice. If the perpetrator is prosecuted, it generally does not result in money damages for the victim, but, rather, in prison time for the perpetrator. If Khadizha wishes to receive compensation for her injuries, she must sue the perpetrator in a civil suit.
3. Yes, the fishing industry can engage in regulatory negotiation to try to get the fishers together with the agency administrators to have them hash out some of their differences before the regulation is promulgated.
4. Xie may attempt to conciliate the claim, may have someone mediate the claim, may have someone arbitrate the claim, or may sue Monty in small claims court. All of these options are much less expensive than a full-fledged lawsuit against Monty.
5. Preponderance-of-the-evidence standard used in more serious civil cases, rather than a preponderance of the evidence.
6. No, she will likely not be successful in striking the prospective jurors for cause, because the connection between the cause she alleges and the predisposition of bias she alleges is too tenuous and too many people use computers to allege that they all feel the same way.
7. Ralph's attorney is correct. Although the claim is basically a state personal injury claim, the federal court has diversity of citizenship jurisdiction because the case involves more than $50,000 in damages and the two parties are from different states.
8. No. Barton suffers no compensable injury, because he was able to get virtually the same car at another dealer for the same price. Nominal damages are appropriate here to recognize that a breach has occurred, but no compensatory damages were needed.
9. No. When there is a panel of arbitrators, the majority wins and the award is just as valid as if it were unanimous.
10. Since the sewing machine is unique and irreplaceable, Dawn is in need of equitable remedies rather than money damages. Money damages would be inadequate, because the heirloom sewing machine cannot be replaced. The equitable remedy available would most likely be specific performance to get the repairer to get the machine back and deliver it to Dawn as agreed.
11. False. The jury returns with a verdict. Judgments come from judges.
1. Because the act was an accident rather than an intentional tort and because it was not the serious type of activity prohibited by most strict liability statutes, EJ. and the client will likely sue Roscoe for negligence. They will allege that Roscoe failed to act as a reasonable person by erecting such a thing in his yard, where, even though there was a 10-x-10 foot screen, balls would likely go over or around the screen. Roscoe injured them because of his failure to meet the standard of a reasonable person under the circumstances. Roscoe will likely defend by alleging he used reasonable care by erecting the mesh screen. He would have to show that the screen was of a size and type which generally would provide enough protection Tom the type of action that occurred. If Roscoe can show that he used reasonable care and met the appropriate standard, he would likely not be held liable for the injuries.
2. Probably not. Cindy saw that the rope appeared to be too weak for the glass, yet because she did not want to be late for work, she took the risk of going under the glass rather than around it. Even though Botticelli was using rope that was too weak for the job, Cindy voluntarily assumed the risk of going under the glass that was being held by a weak looking rope she thought could break, and therefore Botticelli would not be liable. Botticelli was wrong in creating the risk, but Cindy knew of the risk and voluntarily assumed it.
3. Yes. In this situation, Cindy may be able to show that the Botticelli workers were negligent in not having enough precautions to protect the glass from falling if a worker had to temporarily let go of the glass (such as a pulley system or more rope). However, Botticelli would be able to show contributory negligence on the part of Cindy, in her pinching of the worker. If it is not a comparative negligence jurisdiction, Cindy would not recover, for her contributory negligence would constitute a complete defense to Botticelli's negligence. If it is a comparative negligence jurisdiction, the amount Cindy would receive would be decreased by an amount equal to the percentage of negligence attributable to Cindy.
4. Yes. Ann and Bill are strictly liable for all the damage caused by their keeping Bessie, a wild animal. It does not matter that Ann and Bill had a trainer, used a tame animal with a history of performing under similar circumstances, or had Bessie chained. Because Bessie is a wild animal and Bill and Ann used her for their promotion, they are strictly liable for the harm she does, and therefore the precautions they took are irrelevant. Workers' compensation considerations aside, Ann and Bill would also be liable to Linda for the heart attack she suffered as a result of Bessie’s actions.
5. False. Battery is a charge involving harm to a person, not to property, and it is an intentional tort, not a negligence or strict liability offense. If anything, the claim might be for trespass to personal property, but there is still the question of intent.
6. b, battery-an intentional, unpermitted touching. Because an assault charge results from putting someone in fear or apprehension of an immediate bodily touching, Matthew cannot use that charge, because he was asleep and therefore not in fear or apprehension of an immediate bodily touching. Maria's act would likely not be considered outrageous enough to constitute the tort of intentional infliction of emotional distress. Intrusion upon seclusion requires the tortfeasor to go into a private space in some way. That would likely not apply here because they were on a bus. The better answer is battery. Because Maria did not have permission for the intentional kiss and Matthew did not want it or consent to it, the requirements are met.
7. It depends. If on one hand it appeared that the held her for a reasonable time, and treated her in a reasonable manner, she will lose. If, on the other hand, it can be shown that the suspicion was unreasonable or that the time limit or manner of treatment was unreasonable, Ceilie will win. The basketball-looking stomach may be reasonable. Holding Ceilie for three hours could be reasonable if the store can show that because of personnel deficiencies or an influx of customers at the time, it could not get to the matter in less time. As for the way in which Ceilie was approached, it was unreasonable. There was no reason Ceilie should have been approached in a way that presumed she had stolen the ball and was unwilling to cooperate if approached correctly. She need not have been grabbed and yelled at unless someone actually saw her steal the ball and put it under her clothing. Even then such an approach is questionable. Because the shopkeeper's rule was not complied with, the shopkeeper lost the defense to false imprisonment, and Ceilie wins. Based on a true situation.
8. Trespass to personal property. By taking home the Purvis truck,
9. No. Under the theory of respondent superior, Bill and Ann are liable for the torts committed by their employees in the scope of employment. They would therefore be responsible for Robert's injuries.
10. Another name for injurious falsehood is disparagement.
ll. Manuel can sue Deborah for theft of trade secrets. Manuel must show that he took steps to keep the trade secret and that Deborah violated that by sneaking in to watch him, then talking the recipe and using it for her own commercial ends.
12. The contractor probably will not be strictly liable for Mariko's injuries. The strict liability category is generally reserved for activities that are so dangerous until
the care the tortfeasor takes in conducting the activity does not matter in recovering for the tort. Here, building a house is not so dangerous an activity that anyone injured at the site can recover. Mariko may be able to recover in negligence, but not on the basis of strict liability.
13. No, it is not a breach of contract for a person involved in a contract not to permit subsequent additions to the contract that would modify the original agreement. If the contractor does not wish to contract to do anything other than what was in the original contract, that is permissible. Mariko’s only legal recourse is to get someone else to perform the work any try to get the original contractor to agree to allow someone else to come in and do what Mariko wants done.
1. Yes. This contract is required to be in writing under the Statute of Frauds because it is incapable of being performed within a year from the time it is made. Although the actual period of performance was January to September - less than a year, the contract was formed in July 1994, and that is when the time starts to run for Statute of Frauds purposes. Because the contract is from July 1994 to September 1995, it is incapable of being completed within a year from the time it was made and is therefore required to be in writing in order to be enforced.
2. Chris loses, because gambling is illegal in the state, and therefore it is illegal to contract to gamble. Because the contract is illegal, it is void and has no force or effect; therefore, when Chris sues for breach of contract, because there is no contract, she loses.
3. a. Illegal contracts are void.
4. Because the contract is void, the court will leave the parties where it finds them and thus not enforce the contract.
5. Sheffield wins. If Sheffield can show that the events happened as they did and Gloria mailed the acceptance before she faxed the rejection, then the acceptance, which would be effective when sent, would have created a contract as soon as Gloria mailed it on the 6th. The acceptance is effective when sent, even if it is late or lost. This scenario should not be confused with an acceptance after a prior rejection. There, the first to reach the offeror wins. Here, the acceptance was sent first, rather than the rejection, so the mailbox rule governs.
6. Johnson wins. The Parol Evidence Rule will not allow Weinstein to bring in evidence to show that the contract was different from what was written in the contract. Weinstein wants to use the phone conversation to establish that the agreed-upon color was different from the delivered color. However, because the contract was written and integrated and the agreement reached before the contract was signed, the oral evidence of the phone conversation will not be permitted to vary or alter the terms of the written agreement.
7. Bill and Ann win. There is no consideration to support Ann and Bill's promise to pay Ku the $50,000, and therefore the promise is not enforceable. The consideration, helping Ann and Bill to get the account, was past consideration and therefore not good consideration to support their promise.
8. b, a promise for a promise is a bilateral contract.
9. Prevention. Jekyll's nonperformance will be excused if Hyde, with whom he contracted, prevented him from performing.
10. Alice has the right to train at The Biceps
Store. She has been assigned a contract by Sarafina. Because the assignment
does not require any change in what The Bicep Store must do, in that it is not
more burdensome for the store to allow
1. Deb's employer is correct. Under the FMLA, an employee cannot take time off to care for the parent of a spouse, though Deb would be able to take time off to care for her own parent.
2. Michael wins. OSHA contains antiretaliation provisions that protect employees who report violations to the agency.
3. Charmaine's argument carries no weight. Under workers' compensation regulations, the cause of the injury is not at issue. It is a no-fault system, and therefore defenses are neither necessary nor of any consequence.
4. The steward is incorrect. Under the duty-of-fair representation clause, though it is not defined in the law, it has been held that all members of the bargaining unit are entitled to fair representation by the union whether or not they are members of the union.
5. No, the employees are not correct. The FLEA does not establish a maximum time employees can work in a week, but, rather, requires that any hours worked over 40 be paid at the rate of time and a half.
6. union shop.
8. No. This is not an unfair labor practice. Management is promising the employees nothing, but, rather, giving its opinion as to what happens in the presence of a unionized workplace. This is permissible.
9. Employers can cut their workers' compensation costs by:
· ensuring that the workplace is safe in order to minimize accidents
10. No. In order to be the subject of an unfair labor practice, management's refusal to bargain must be over a mandatory subject of bargaining such as wages or hours.
1. d, disparate treatment, because the policy is facially discriminatory in that the company does not hire females.
2. Yes. Because this policy is directed only to African- American firefighters, it constitutes race discrimination in a term or condition of employment, in violation of Title VII. The captain's speculation that white firefighters will not wish to sleep on the black firefighter's bed is not a defense to the action.
4. Yes. Richard has a cause of action under the ADEA for age discrimination if that is the reason for the superintendent's decision. We know Richard must be older than 40-the minimum age for application of the ADEA-because he retired from the post office after 35 years. We do not know how much older than 40 he is, and it does not matter, because the important consideration is not his age, but whether he can perform the job. If Richard is able to do the job, it is a violation of the ADEA if he is not hired simply because someone thinks he may be too old.
5. Yes. Pablo has instituted a voluntary affirmative action plan; however, the chances of its withstanding a reverse discrimination attack are slim. In order for Pablo's plan to withstand judicial scrutiny when challenged by the African-Americans and Hispanics who are not now able to apply for the next 20 slots Pablo has open, Pablo would have to demonstrate that his plan was instituted to address a historical underrepresentation of whites in the workplace, that the plan did not unnecessarily trammel the interests of the nonwhite employees, the 20 slots chosen were connected to the difference between the percentage of whites available in the area drawn from and the percentage of whites in Pablo's workforce, and that the plan was for the purpose of attaining rather than maintaining tile goal percentage. If whites are not historically underrepresented in the workplace or if the goals are not related to their availability in the area drawn from, then Pablo's plan, well intentioned though it may be, will fail.
6. Yes, Suardana has violated Title VII by refusing to hire Christians. Under Title VII, Suardana has a duty to try to accommodate the religious conflicts employees or applicants have. If accommodation attempts fail and there is no other choice except not hiring the Christian applicants, Suardana will have done his duty under Title VII. However, Suardana cannot make a decision to simply not hire any Christians and not provide the attempted accommodation.
7. Debbie can sue Jay's for gender discrimination if Jay's employs 15 or more employees. If not, she may be able to sue under her state fair employment practice statute if the limit is lower. Even though Jay need not hire Debbie if she cannot perform the necessary duties for the job, Jay must allow
Debbie to try out for the job, rather than assume she cannot do it simply because she is a female.
8. No. At least not for simply asking that question. If the interchange was done in a suggestive way, or if Roger touched Laurabeth, or if Roger engages in a continual barrage of such comments, it might meet the requirements of sexual harassment. As it is, his behavior does not appear to be severe or pervasive or unduly intrusive such that it meets the requirements of sexual harassment. The fact that Roger is a coworker rather than a supervisor would not mean Laurabeth could not charge him with sexual harassment if his acts met the requirements.
9. No. The BFOQ must be reasonably necessary to the essence of the employer's business. In this case, the business involves the safe transportation of passengers from one point to another. Being female is not a BFOQ for that.
10. False. Anyone who fills a job should be qualified to do so. Affirmative action is appropriate only when there has been a finding of underrepresentation of women and minorities and a reasoned attempt to bring them into the workplace.
1. Dawn will likely tell Aunt Ruth that the library administrators are invading her privacy. The library's use of the information for the nebulous reason of "seeing if they form any pattern" is not sufficient to justify its intrusion into Ruth's privacy concerning the books and videos she checks out.
2. No. Because Kurlen will have access to the hospital's drugs and pharmaceuticals, it is within the hospital’s needs to have such a drug test for this type of personnel and thus would probably not be held as an unwarranted invasion of privacy. Of course, the hospital must keep the test results private. In addition, because of the possibility of unauthorized use of the hospital's drug supply, it is probably justifiable for the hospital to require drug tests for this position.
3. False. Unless state law actually prohibits such laws, there is nothing to keep an employer from providing such benefits.
4. Randall should consider the gender implications of the decision he reaches with regard to parenting conflicts. While parenting is not a protected category under federal and most state fair employment practice laws, because females tend to take on the parenting role to a greater extent than males when it comes to workplace conflicts, Randall should ensure that whatever decision he reaches does not have adverse gender implications. He should also ensure that he treats male parents the same or comparably to female parents.
5. The employer's interest in having a drug-free
and alcohol-free workplace against the employee's right
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