Final Review Flashcards

1
Q

Exam Analysis

A
  1. Identify the wrong
    i. Contracts
    ii. Torts
    iii. Civil rights
    iv. Consumer Fraud
    v. Statutory
  2. Identify the possible defendants
    i. Private parties
    ii. Non-profits
    iii. Foreign parties
    iv. Governments (rules vary)
  3. Identify the causes of action
    i. Remedies are not the cause of action
    ii. First the cause of action/liability
    iii. Finally, then the remedy
  4. Possible remedies
    i. Compensatory damages
    ii. Punitive damages
    iii. Statutory
    iv. Constitutional
    v. Injunctive relief
    vi. Declaratory relief
    vii. Attorneys fees and costs
    viii. Restitution
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2
Q

Contract Issue Sequence

A
  1. Establish the contract
  2. Choice of law (contract or UCC)
  3. Statute of frauds
  4. Establish the breach
  5. Defenses
  6. If sales contract - COVER is the preferred remedy
  7. If inadequate remedy at law - then equitable relief
    - Specific performance
    - Declaratory judgment
    - Injunctive relief
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3
Q

Tort Issue Sequence

A
  1. Cause of action (the wrong)
  2. Defenses

Notes:
Intentional torts - Establish intent and lack of consent

If conversion, the preferred remedy is fair market value of the chattels
Writ of Replevin for chattels back

If trespass to chattels, damages are the actual damages

If trespass, damages for all the damages that flow out of the trespass, whether foreseeable or not

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4
Q

Constitutional Tort Issue Sequence

A
  1. Establish the Constitutional right
    - First Amendment - Freedom of 1) religion, 2) speech, and 3) the press. Right to 1) peaceful assembly and 2) to petition the government for a redress of grievances
    - Forth Amendment - Unreasonable search & seizure
    Fifth Amendment - Right 1) against self incrimination, 2) to due process of law, and 3) from double jeopardy
    Sixth Amendment - Right to counsel
    Eighth Amendment - Right to freedom from cruel and unusual punishment
  2. 42 U.S.C. § 1983
    - Civil action for deprivation of rights
  3. Defenses
  4. Remedies
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5
Q

Compensatory Damages

A

TORTS
Places the victims/parties in the position they were in before the tortious act.

Typically, can only be done by monetary amounts

CONTRACTS
Provides the benefit of the contract

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6
Q

Punitive Damages

A

Damages to punish the defendant for the wrong-doing

Deters the defendant and others from repeating the act in the future

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7
Q

Declaratory Relief

A

Seeks to determine rights before a breach

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8
Q

Contracts Approach

A
  1. Establish the contract (IRAC)
    - Offer
    - Acceptance
    - Consideration
  2. Any defenses to the validity of the contract (IRAC)
    - Fraud
    - Statute of Frauds
    - Mistake
    - Unconscionability
  3. Establish the breach
  4. Damages
    Conventional Tort Damages
    COVER (!)
  5. Remedies
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9
Q

Torts Approach

A
  1. Establish the tort (IRAC)
    eg. Trespass - Trespass is the intentional entry upon land of another without consent.
    - Intent is shown by …
    - It’s [Plaintiff’s] land …
    - Lack of consent is shown by …
  2. Tort damages for [tort]
    eg. Damages for trespass are normally those (the damages) that flow directly from the trespass, whether foreseeable or not
  3. Additional remedies
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10
Q

Damages: Personal Property/Chattels

A

Both CONVERSION and TRESPASS TO CHATTELS are intentional torts

Conversion - Substantial inference
The usual remedy is the fair market value of the chattel (aka a forced sale)

Trespass to chattels - Minor or temporary interference
The usual remedy is limited to the actual loss

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11
Q

Damages: Real Property

A

Plaintiff usually gets:
Market value
Replacement cost
Reconstruction cost
Special values

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12
Q

Damages: Environmental

A

Restoration/cleanup costs

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13
Q

Damages: Pets

A

Generally, market value
Medical costs, if injured

Things to consider: Mutt? But best nose in the country?

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14
Q

Nuisance

A

2 types: Private & Public Nuisance

Private Nuisance:
- Interference with the use and enjoyment of one’s land
- Interference must be substantial
- Plaintiff must be making a reasonable use of their land
- Defendant must be making an unreasonable use of defendant’s land

Private Nuisance v. Trespass:
The two can overlap. Trespass is intentional, nuisance is not necessarily intentional

Trespass - Physical entry onto the land - The intentional entry onto the land of another without consent

Nuisance - Use and enjoyment of the land

Public Nuisance:
Interference with the rights of the public as a whole, or a substantial segment of it:
- Public health
- Public safety
- Public morals
- Public welfare
- Public convenience

Enforceability of Public Nuisance:
- Historically only by the state
- Exceptions: Private party suffers an injury different in degree from the public, statutory

Remedies for Nuisance:
- Injunctive relief
- Money damages
- Self help

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15
Q

Defamation

A

The publication of false statement that holds you up to hatred, contempt, or ridicule OR causes you to be shunned or avoided

Rule: A plaintiff must show 1) a false statement purporting a fact, 2) publication or communication of that statement to a third party, 3) negligent disregard to the truth, and 4) actual harm

Two types: Libel & Slander
- Libel - Primarily written, conveyed by sight
- Slander -Primarily oral, conveyed by hearing

Normally needs to show special damages unless falls into one of four slander per se categories

Slander Per Se Categories (presumption of special damages):
1. Statement that P committed a crime (not any crime, but one involving moral turpitude)
2. Statement as to business, trade, profession or occupation
3. Statement of a loathsome and communicable disease (STDs, leprosy, the plague)
4. Statement that a woman is unchaste

Types of damages available:
- Special damages (economic damages that flow directly out of the defamation)
- General damages (any other compensatory damages such as emotional distress)
- Punitive damages

Defenses:
- Truth (absolute defense, burden on the defendant, presumption is statement is false)
- Constitutional freedom of speech

Fair comment: The right to express opinions of politicians, movies, music, etc.

Notes: Publication only needs 1 person, cannot defame the dead, court decides if language can be defamatory, jury decides if it is defamatory

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16
Q

Writ of Replevin

A

Writ of Replevin

Is an authorized re-taking of the property to return to its rightful owner

17
Q

Cover

A

After breach for a sale - the buyer may recover from the seller damages the difference between the cost of cover and the contract price

18
Q

42 U.S.C. 1983

A

Plaintiff files action under 42 USC § 1983 for deprivation of rights.

19
Q

Injunctive Relief

A

Specific relief - court order requiring someone to do or stop from doing something

Need to show:
1) Inadequate remedy of law
2) Irreparable harm to plaintiff without injunction
3) Balance of the hardships (does it favor plaintiff?)
4) Public interest

20
Q

Temporary Restraining Order (TRO)

A

Temporary, emergency relief. Typically lasts 2 weeks.

Analyze injunctive relief factors + exigent circumstances

21
Q

Preliminary Injunction

A

Injunction while litigation is in process.

Analyze injunctive relief factors + Plaintiff’s likelihood of success on the merits

22
Q

Permanent Injunction

A

The final court order of injunctive relief.

23
Q

Constructive Trust

A

Hold the money in controversy in a constructive trust to ensure it’s not mishandled until the matter can be decided.

24
Q

Equitable Accounting

A

Follow the money

25
Q

Medical Monitoring

A
26
Q

Attorneys Fees

A