Exam 2 Flashcards
(39 cards)
What is the “chilling effect” under constitutional law?
When a law or a government action discourages individuals from exercising their constitutional rights, particularly freedom of speech, due to the fear of potential legal repercussions or other negative consequences.
Where would we find our Civil liberties in the constitution?
They are primarily found in the Bill of Rights, which are the first ten amendments of the Constitution.
What is the strict scrutiny test?
The highest standard of judicial review used by courts to determine the constitutionality of government actions or laws, particularly those that infringe on fundamental rights or involve suspect classifications like race or religion.
What are the two religious clauses in the first amendment?
The Establishment Clause and the Free Exercise Clause
What is not considered protected speech?
Speech that tends to damage reputation or property of another, speech that threatens to disrupt public order or undermine government (must be clear and present danger), speech that is obscene. Unprotected speech includes obscenity, child pornography, defamatory speech, false advertising, true threats and fighting words.
Trick Question: Where would you find the due process clause?
Due process clause can be found in both the fifth and the fourteenth amendment in the US Constitution
Are all forms of discrimination by the government considered illegal?
Yes, discrimination against employees and job applicants is based on sex, color, religion, sex, national origin, disability, or age. Federal anti-discrimination laws set minimum national standards all states must comply with; however, state and localities may pass additional laws and regulations that increase protections. Discriminatory treatment is only illegal if a person is part of a legally defined protected class.
What is the intermediate standard (aka heightened scrutiny standard)?
A legal standard used by courts to evaluate the constitutionality of laws that discriminate based on gender or other quasi-suspect classifications, requiring the government to demonstrate that the law serves an important government interest and is substantially related to achieving that interest.
Is discrimination based on sexual orientation always illegal?
In 2020, the US Supreme Court ruled for the first time that discrimination based on sexual orientation was illegal under the 1964 civil rights act.
When are exceptions allowed when the religious provisions of the first amendment are violated?
Can indirectly aid churches (busing, vouchers (can aid all parochial schools since ALL parents get vouchers) and historical value (nativity sets, oath of office, coinage, opening Christian prayer at town meeting is now okay)
What are examples of intentional torts?
Assault, battery, trespass, malicious prosecution, false imprisonment, and intentional infliction of emotional distress.
When do you have to prove malice in defamation cases?
When the plaintiff must show that the defendant either knew the material was false but went ahead and published it anyway or acted with a “reckless disregard” for whether or not it was true.
When can you stand your ground in Michigan?
When a person honestly and reasonably believes it is necessary to prevent imminent death, great bodily harm, or sexual assault to themselves or another, and you are not committing a crime or in a place where you don’t have a legal right to be.
What kind of tort is an assault?
Intentional tort
What are the four types of invasion of privacy?
Unwarranted publicity/false light (made up facts, like defamation), intrude into person’s private life, discloses embarrassing private acts (no legitimate reason or revenge porn), and commercialization of a person’s name
What are the elements of intentional infliction of emotional behavior (stress)?
The defendant must act intentionally or recklessly, the defendant’s conduct must be extreme and outrageous, and the conduct must be the case of severe and emotional distress
When is a crime also a tort?
A commission of a crime that harms another is automatically a tort
What are the modern elements of proximate cause?
“But for” old standard, must be actual causation and foreseeable now, must be reasonably foreseeable
What are Dram (alcohol) shop laws?
Statutes making bar owners responsible if intoxicated patrons negligently injure third parties.
What are the different types of defenses to negligence (at least three)?
Contributory negligence (negligence by the plantiff that contributed to his or her injury), comparative negligence (a method for measuring the relative negligence of the plantiff and the defendant with a commensurate decrease in the compensation for the injuries), and product liability negligence (refers to a company’s failure to meet the legal standard of care in the manufacturing or design of a product.
When does the government have immunity from tort liability?
Malicious prosecution (a form of defamation), requires actual acquittal, similar to abuse of process but the government official involved must now sign a release to not sue, the government is immune but not pros.
What are the elements of product liability?
Issues regarding product design, manufacturing of the product, and safety warnings that the manufacturer failed to provide in the usage of their products
What are the defenses to product liability?
The use of the product by the plantiff was abnormal or a misuse of the product. Damage was caused by the user’s negligent use of the product and not by any defect in the product.
What are the different types of compensatory damages?
Out of pocket expenses, loss of profit, sleep loss, missed days at work, therapy costs
