Final Review Flashcards
Exam Analysis
- Identify the wrong
i. Contracts
ii. Torts
iii. Civil rights
iv. Consumer Fraud
v. Statutory - Identify the possible defendants
i. Private parties
ii. Non-profits
iii. Foreign parties
iv. Governments (rules vary) - 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 - 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
Contract Issue Sequence
- Establish the contract
- Choice of law (contract or UCC)
- Statute of frauds
- Establish the breach
- Defenses
- If sales contract - COVER is the preferred remedy
- If inadequate remedy at law - then equitable relief
- Specific performance
- Declaratory judgment
- Injunctive relief
Tort Issue Sequence
- Cause of action (the wrong)
- 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
Constitutional Tort Issue Sequence
- 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 - 42 U.S.C. § 1983
- Civil action for deprivation of rights - Defenses
- Remedies
Compensatory Damages
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
Punitive Damages
Damages to punish the defendant for the wrong-doing
Deters the defendant and others from repeating the act in the future
Declaratory Relief
Seeks to determine rights before a breach
Contracts Approach
- Establish the contract (IRAC)
- Offer
- Acceptance
- Consideration - Any defenses to the validity of the contract (IRAC)
- Fraud
- Statute of Frauds
- Mistake
- Unconscionability - Establish the breach
- Damages
Conventional Tort Damages
COVER (!) - Remedies
Torts Approach
- 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 … - Tort damages for [tort]
eg. Damages for trespass are normally those (the damages) that flow directly from the trespass, whether foreseeable or not - Additional remedies
Damages: Personal Property/Chattels
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
Damages: Real Property
Plaintiff usually gets:
Market value
Replacement cost
Reconstruction cost
Special values
Damages: Environmental
Restoration/cleanup costs
Damages: Pets
Generally, market value
Medical costs, if injured
Things to consider: Mutt? But best nose in the country?
Nuisance
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
Defamation
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
