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Flashcards in Tort Law and Economic regulation Deck (32):
1

Name 4 regulatory tools of Public Health Agencies and briefly describe their functions.

1. Licenses:
Licenses help with setting standards for entry and monitoring activity.
2. Inspections and Administrative searches: Inspections and administrative searches work by identifying and responding to unsanitary conditions, unsafe environments, impure products
3. Nuisance abatement: Nuisance abatement prohibits hazardous activities (pollution, dangerous
construction, places that encourage risky behavior).
4. Direct regulation of use and operation: As the name suggests, direct regulation is application of regulations directly.

2

What are potential problems with licenses?

* Social and economic fairness
* Procedural fairness
* Constitutional issues

3

What are potential problems with administrative searches?

Warrant: A warrant is required unless one of the following exceptions are met-
permission, emergencies; “open fields” doctrine for public places; pervasively regulated industries
Admissibility of evidence- depends on how it was obtained. Primary purpose must be PH (then evidence can ALSO be used for criminal purposes).

4

What are potential problems with nuisance abatement?

* Nuisance abatement is difficult to define since it covers the broad area of “anything which is injurious to health”
* Courts retain power to determine if it exists
* Courts also use remedies in “equity”* to abate

5

Which case was one of the most important landmarks during the economic due process evolution?

Lockner (1905)

6

What time period is defined as the Lockner era?

1905-1937

7

What happened during the Lockner era?

Courts overturned many economic regulations in favor of the individual's right to contract

8

What happened in the post-Lockner era?

Courts have presumed police power regulation to be valid, even in economic sphere

9

What standard of review do the courts use to evaluate issues involving freedom to contract?

Rational basis review

10

What was the holding in RUI Corp. v City of Berkeley

In Rui Corp. v. City of Berkeley, the court held that there was no infringement of contracts when the city decided to set a minimum wage regulation, since the 'power to regulate wages and employment conditions' lies clearly within the state's police power. Legislative bodies have a broad authority to exercise such power.

11

Describe the three part test the court would use to assess government regulation that interferes with private contracts?

1. Is there a substantial impairment of a contractual relationship?
2. If so, does it serve a significant and legitimate public purpose?
3. Is it reasonably related to achieving the goal (public purpose)?

12

Define regulatory taking.

Empowered by the 5th Amendment, the government can take possession of property for public purpose, but it must compensate owner. This is known as regulatory taking.

13

Describe the components of the balancing test established in the Penn Central Transportation Co. v. New York City.

1. the economic impact of the regulation on the property owner
2. the extent to which the regulation has interfered with investment-backed expectation
3. the character of the governmental action.

14

Define tort.

A tort is a civil, non contractual wrong for which an injured person or group of persons, seeks remedy usually in the form of monetary damages.

15

What are the goals or functions of tort law?

The following are the goals or functions of Tort Law-
* Assign responsibility
* Compensate the injured party/parties
* Deter unreasonably hazardous conduct
* Encourage innovation.

16

Name 3 major theories of tort liability

* Negligence
*Private Nuisance
* Strict liability- product liability

17

Name the four modern elements of a cause of action based on negligence.

*Duty of care
*Breach of duty
* Causation
* Loss or Damage

18

What is duty to care?

Duty to care is the obligation to conform to standard of conduct of protecting others against unreasonable risks of harm.

19

What is breach of duty?

Breach of duty happens when a person fails to conform to legally recognized standard of safe behavior.

20

What is private nuisance?

Private nuisance is unreasonable interference with the possessor's use and enjoyment of land.

21

The court would assess the reasonableness of private nuisance by weighing the following elements:

* extent and duration of harm
* social value of the activity
* cost of avoiding harm
* comparable economic effects.

22

What are the limitations of strict liability?

*intention- defendent must knowingly engage in the activity
* proximate cause- persons must be foreseeably harmed
* Public duty privilege- liability is not imposed when law expressly authorizes or imposes a duty to conduct the activity
* Sovereign immunity- federal tort claims act waives sovereign immunity.

23

What activities define the doctrine of 'abnormally dangerous activities'?

high degree of risk, seriousness of resulting harm, inability to eliminate the risk by due care, danger versus value to community.

24

Name 3 categories of product liability

* Manufacturing defect
* Design defect
* Failure to warn

25

What is 'reasonable design alternative'?

Reasonable design alternative is a liability limiting test that requires the plaintiff to demonstrate that the product could be made safer.

26

State four problems of scientific proof in mass exposure litigation.

* Exposure: large number of people have exposure, but some have alleged health condition and some do not.
* Confounders: some people are exposed to other agents that could cause same health condition.
* Background levels of disease
* Latency: because of passage of time it is difficult to prove causation.

27

What kind of evidence does Frye's general acceptance test allow?

Frye's general acceptance test permits into evidence only "a well- recognized scientific principle or discovery.. sufficiently established to have gained general acceptance in the particular field.

28

What kind of evidence do the Federal rules of evidence allow?

If scientific, technical, or specialized knowledge will assist the trier of fact to understand the evidence, a witness qualified as an expert may testify.

29

What was Daubert's 2 part test?

Under Daubert, the court established a two-part test to determine the admissibility of scientific evidence:
relevancy and reliability.
For reliability the court considered four factors: testing, peer review, error rate and general acceptance.

30

What did Joiner contribute in terms of criteria for scientific evidence?

As per Joiner (1997), the court could critically examine whether the expert's conclusions were supported by the studies cited.

31

What conclusion did Supreme court reach under the Kumbo case?

In the Kumbo case, the supreme court held that the Daubert factors apply not only to scentific factors but to all experts.

32

What are the social and economic costs of tort law?

* Economic burdens due to monetary compensation
* Penalizing business judgement
* Deter and stifle innovation
* Wrong incentives