Class Notes Exam 1 Flashcards
What happens without law
Self help, acquire resources based on power
Law
Collection of enforceable rules
Historical law
Based on past experience
Legal realism
Law doesn’t exist if not enforced
Rule of law, why is it ideal?
Generally and equally applicable set of rules
Ideal because we have special interest groups
3rd circuit appellate court on federal system
For Pennsylvania, Nj and De
Criminal law vs. civil law
Criminal law- punish and deter
Civil law - provide remedy when someone has been wronged
Statute
Penal code
Diversity jurisdiction
Go to court when multi state
Venue
Where cause of action arises
What suit occurs when person gives trade secrets of a company to a competitor?
Tort suit
Ethics
Philosophy studies what’s right and wrong
Morals
Values that guide our behavior
What does the law incorporate?
Ethics
Consequentialism
Best benefit for greatest number of people
What is important to have occur with management to instill ethical values in company?
Top down training of management
4 rewards associated with ethical behavior of companies?
1 avoid legal liabilities 2 increase profit 3 satisfy and motivate employees 4 avoid costs of unethical behavior (need for unions and gov. Regulation)
Testing animals if it benefits people is an example of?
Formalist prospect
Personal jurisdiction
Power over parties
Subject matter jurisdiction
Court has power over issues involved
In a diversity lawsuit when does state law apply? When does federal law apply?
State law when substantive
Federal law if procedural
You can have a diversity lawsuit when…
Company has place of business in same state as plaintiff
But is incorporated in different site
What court does tort law usually go to?
State court
Marbury vs. Madison
Federal law giving Supreme court original jurisdiction
Judicial restraint
Look for letter of law and past precedent, decide only issue
Presented
Defer to congress
The FDA is immune…
From being sued usually
Judicial activism
Court should look at law in context
Promote social values
Litigation
Legal process through which parties resolve case using
Formal court proceedings
Standing
Plaintiff is harmed so qualifies to file lawsuit
Pleadings
Complaint, relief party is seeking
Deposition
Ask plaintiff what happened
Stipulation of facts
Facts that can be agreed upon
You can’t use peremptory challenge on basis of…
Race
Opening statement, when is it good?
Most significant part of trial b/c jury makes mind up quickly
Good when puts jury in client’s shoes
What does the attorney need to figure out in a trial before anything else?
Closing arguement
Res judicata
Final decision, can’t be appealed
ADR, 3 methods
1 negotiation
2 mediation
3 arbitration
Negotiation
One on one discussion
Rule 11
Totally frivolous claims
Binding arbitration
Not subject to court process
The arbitrator resolves issues inside the…
Statute of limitations
If arbitration occurs employees must…
Sign contract agreeing to arbitration
What does taxation give the US authority to do?
Be able to borrow from foreign countries
What are the 2 main purposes of the constitution?
1 establish authority
2 limit power in each branch of government
What is the general gist of what article 1: section 8 says?
Says what the government can do, gives gov. Powers
Interstate commerce clause
Power to regulate commerce between states
Ex. Federal gov. Can act when marijuana leaves colorado
States can only step in to contracts in…
An extreme crisis
Ex. Foreclosing in a severe recession
Rights
Property
Freedom
Privileges
Permission
Most rights are actually privileges
Why was the constitution drafted?
To prevent revolutions in the future
4 types of speech not protected?
1 speech that starts riots, risk of catastrophe
2 obscenity (ex. Sexual harassment)
3 defamation (making false statements causing injury)
4 fighting words
Can a public university limit freedom of speech?
2) can a private university limit freedom of speech?
No
2) yes
Time, place, manner restriction
You can talk about it but not during period with heavy traffic
Ex. No protests during concert because may lead to
Violence
14 Ammendment
Most important for businesses and human rights
What 2 clauses does the 14th Ammendment contain?
1 equal protection clause
2 due process
What is the main statement of the 14th Ammendment
State can’t deprive person of life, liberty and property
Without due process
2 kinds of due process
1 procedural
2 substantive
Due process: procedural
Fair proceeding, right of notice
Due process: substantive
Law limits rights for all people
4 examples of fundamental rights?
Vote, marry, privacy, travel
Strict scutiny
Must be compelling state interest in relation to topic
Banning same sex couples to marry
Fundamental right so shouldn’t judge
Violation of substantive due process or violation of equal
Protection clause
If laws are not enforced there’s no issue for the supreme. Kurt because…
There’s no standing
Executory contract
Executed contract
4 requirements of binding contract
1 agreement
2 consideration
3 capacity to contract
4 legality
Agreement
Mutual assent to same bargain
Consideration
Promise
Legality
Not illegal
Common law
Precedent of cases that have been passed
Contracts: proper formation
Definite offer that has been accepted
Void
No contract at all
Avoidable contract
Not in effect because of defense
A real estate transfer…
Must be in writing
Can an agreement count if it isn’t read?
Yes
3 terms of a definite offer?
1 serious
2 definite terms
3 communicated to offeree
Unjust enrichment
Receiving benefits when they weren’t earned and
At expense of other party
What must occur in a quasi contract?
Exchange of value
3 terms of acceptance of contract?
1 communication by offeree
2 mirror image rule
3 mailbox rule
Considerations 3 things
1 Bargained for
2 legal
3 promise except gift
Non compete
Disfavored as matter of law
Can’t be held after fired
Promissory estoppel
If you promise someone something they rely upon, even
Though it’s not in the contract it’s enforced
Ex. Employer promises not to fire employee without just cause
Estates and trusts are void if…
Person signs will who doesn’t have capacity
Statute
Law passed by legislature
Usury
Loan sharks, illegal
2 common restrictive covenants (workplace)
1 confidentiality
2 solicitation
Solicitation
After fired can’t contract clients
Ex. Before injunction in courts broker can contact
Clients to bring them with
Unconscionable
So unfair courts won’t enforce contract
Ex. Unconscionable to expect consumers to read online
Contracts
Exculpatory clause
Attempts to relieve party from liability for torts they commit
Ex. Can’t sue if you get hurt on ski resort, although in high
Case of negligence courts won’t enforce exculpatory clause
Contracts are typically enforced in cases of…
Mistake or breach
To be considered duress in pennsylvania
A gun must be pointed to your head
3 contracts that must be in writing
1 services for one year
2 interests in land
3 promise to pay person’s debt
Contracts 4 of rules of interpretation
1 plain language
2 common words given ordinary meaning
3 trade words are given meaning in industry
4 vague and ambiguous words interpreted against drafter
Parol evidence rule
If written agreement anything said before written agreement
Are excluded from interpreting the agreement
3 common exceptions to the parol evidence rule
1 subsequent oral agreement
2 ambiguity
3 condition precedent
Anticipatory repudiation
Party doesn’t need to perform if other party stops performing
Novation
Substitution of 3rd party
Accord and satisfaction
Agreement to take less and payment of lesser amount
Discharge of operation
Event hasn’t occurred
Force majeurclause
Parties agree in advance what occurrences will discharge performance
(ex. Strike)
Punitive damages ate never awarded for…
Breach of contract
Nominal damages
Not actually harmed from breach of contract
Quantum merit
Implied that will be paid from doing work
Ex. Terminated before collecting commission from doing
Major deal with company
If a building is built and the plumbing and insulation are poorly done. And the dueling company promises to fix the plumbing and isolation but doesn’t, what legal action can and can’t be taken?
Can file in small claims court
Can’t rescind, because they did build the building
Substantial completion of contract
