Test 1 Flashcards
Define Law
Set of enforceable laws that govern relationships between private parties and between individuals and society.
Sources of Law
State: Constitution Executive Orders Statutes Cases Administration
Federal: Constitution Executive Orders Statutes Cases Administration Civil Codes
Other: Private Parties Legal Scholars Customs Treaties Natural Theology
Natural Law
Universal, in your heart, determined by nature
Positive Law
Must be written down, man-made
Four Type of Cases When Federal Courts Have SMJ
- Diversity > $75,000
- Federal Issues
- State v. State
- Ambassadors
3 Types of ADR (Alternate Dispute Resolution)
Negotiation - no 3rd party
Mediation - 3rd party but does not have final decision
Arbitration - 3rd party that does have final decision
FIVE BOXES
Cause of Action Right of Action Subject Matter Jurisdiction: federal or state Personal Jurisdiction: minimum contacts Venue: most reasonable location
Long Arm Statute
Can be held accountable to the extend that you have established minimum contacts
In Rem
One can be held accountable within a state where property is owned up to the amount of that property, “The Thing”, example: lives in MS but owns boat in LA - could be held accountable in LA up to value of boat
3 Types of State Courts
Trial
Appellate
State Supreme
3 Types of Federal Courts
Trail
Appellate
US Supreme Court
Federal Courts have jurisdiction over most…
Bankruptcy proceedings, federal income tax cases, maritime/admiralty cases
1st Amendment
Guarantees freedom of religion, speech and the press and the rights to assemble peaceably and to petition the government. Also protects consumers from being misled by companies through false advertising
2nd Amendment
States that the right of people to keep and bear arms will not be infringed
4th Amendment
Prohibits unreasonable searches and seizure of persons or property
5th Amendment
Guarantees the rights to indictment by grand jury, to due process of law and to fair payments when private property is taken for public use; prohibits compulsory self-incrimination and double jeopardy
10th Amendment
Establishes that those powers neither delegated to the federal government nor denied to the states are reserved to the states and to the people
14th Amendment
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
Article I
Congressional (Legislative - Makes Laws)
- Commerce Clause
- Powers: post offices, declare war, coin money, intellectual property
Article II
President (Executive - Carries Out Laws)
- Powers: state of the union, veto commander and chief, appoint federal judges
Article III
Federal Court (Judicial - Evaluates Laws)
The foreign state must have a substantial reason for treating a nonresident different from its resident citizen
Privileges and Immunities Clause
Each state shall give full faith and credit to the public acts, records and judicial proceedings of every other state
Full Faith and Credit Clause
the rule that a legal case must be done in a way that protects the rights of all the people involved. Relates to the limits that the law puts on SOME people
Due Process
provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. Relates to the limits that the law puts on ALL people
Equal Protection
Congress shall make no law respecting an establishment of religion
Establishment Clause
Clause that States Constitution is Supreme Law of the Land
Supremacy Clause
Tools for Pleadings (6)
1) Discovery= A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
2) Depositions= The testimony of a party to a lawsuit or a witness taken under oath before a trial.
3) Interrogatories= A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney.
4) Request for Admissions= A written request served upon the other party for an admission of the truth of matters relating to the trial. Any fact admitted is conclusively established as true for the trial.
5) Request for Documents= objects and entry to land – A party can gain access to documents and other items not in his possession in order to inspect and examine them. Also gain “entry upon land” to inspect the premises.
6) Request for Examinations= When the physical or mental condition of one party is in question, can ask the court to order a physical or mental examination by an independent examiner.
Contract v. Tort
- Both have four parts and provide a cause of action
- Contract is a consensual relationship, tort is not consensual
- Tort involves personal injury
- In contractual relationships damages are more precise and usually lower than torts
Four Parts of a Tort
Duty
Breach
Cause
Damage
Duty + Breach =
NEGLIGENCE
Reasonable Persons Standard (Tort)
Duty
Failed to Exercise Reasonable Care (Tort)
Breach
Types of Cause
In Fact and Proximate Cause
Type of Cause that relates to closeness or time, “forseeableness”
Proximate Cause
Actual Cause of Injuries
In Fact
Injury Sustained (Tort)
Damage
Types of Torts
Intentional, Negligence, Strict Liability
Types of Intentional Torts
Assault Battery Trespass False imprisonment TICR
Other: Defamation, Intentional Infliction of emotional distress
Threat of violence is enough to constitute; no physical contact is necessary
Assault
Physical Contact, to cause physical harm
Battery
Any intentional confinement or restraint of another person’s movements without justification
False Imprisonment
2 Types of Strict Liability
Abnormally dangerous (ex: pet tiger), products liability
Types of Products Liability
Failure to warn
Defective Design
Defective Manufacturing
TICR and requirements
Tortious interference with a contractual relationship
- Valid contract must exist
- Third party must know about the contract
- Third party must entice person to break contract
Breach of a statute
Negligence per se
Defenses to torts
Contributory Negligence (playing hockey w/o a helmet) Assumption of Risk (playing hockey)
A method to allocate damages
Comparative Fault
Points of Traditional Contract Law
- Retain the Mirror Image Rule
- Need All Material Terms
- Modifications require consent and consideration
- Option contracts require consideration
- SOF varies
Points of UCC-2
Uniform Commercial Code - Movable and Tangible
- Abandons Mirror Image Rule
- Only Quantity is required
- Modifications only require consent
- Sign written offers are irrevocable
Refers to the requirement that some kinds of contracts be in writing and signed by both parties, unless contact is fully executed
Statute of Frauds
Types of Contracts that must be in writing in LA
- UCC 2
- Nuptials
- Guaranteeing the debt of another (unless for personal benefit)
- Sale of immovable property
- A contact that cannot be performed within 1 year
Parts of a Contract
Agreement
Consideration
Capacity
Legality
Agreement must have…
an offer and an acceptance (can be expressed or tacit)
Part of a contract that could potentially make it voidable
Capacity
Part of a contract that could potentially make it void
Legality
Who Lacks Capacity?
Minors, mentally impaired, duress, lucid intervals (alzheimer’s), some intoxication cases
What destroys an offer?
Revocation, rejection, counteroffer, lapse of time, destruction of subject matter, death
Rejection of a contract plus a new offer
Counteroffer
Attributes of A Contract
Unilateral v Bilateral
Formal v Informal
Express v Implied
Executory v. Executed
Implied “in law” contract, rectifies occurrences of unjust enrichment or detrimental reliance
Quasi Contracts
Types of Mistakes
Unilateral v Bilateral
Mistake of fact v mistake of value
Generally, either party can rescind with this mistake
bilateral mistake of fact
Mistaken party cannot rescind with this type of mistake (unless fraud)
unilateral mistake of fact
Substitution of one party for a third party agreed upon by all parties
novation
Monetary Damages/Remedies
- Compensatory (cover price - contract)
- Consequential (loss profits)
- Punitive (rare)
- Nominal (small)
- Liquidated (built into contract)
Equity Damages/Remedies
- Specific Performance
- Injunction
- Rescission
- Reformation
- Combination
Rewrite or strike provisions of the contract to make it legal, responsible etc.
Reformation
Restore the parties to the status quo prior to the formation of the contract
Rescission
Prevention of something (harassment), restraining or cease and desist order
Injunction
Remedy for a unique situation, faberge egg, heirloom gold watch, house, etc.
Specific Performance
A tax term mandating that a taxpayer is liable for income, which has not been physically received, but has been credited to the taxpayer’s account or otherwise becomes available for him or her to draw upon in the future. Prevents taxpayers from deferring tax on income or compensation they have not yet utilized.
Constructive Receipt
Determines the time at which an offer is accepted, states that an offer is considered accepted at the time that the acceptance is mailed.
Mailbox Rule
A complete agreement between two competent parties
Genuine Assent
Rule that states if contract is in writing, no oral evidence will be considered
Parol Evidence Rule
Exceptions to Parol Evidence Rule
Verbal testimony is allowed to cover ambiguities in written contract
Verbal modifications to agreement (after signed)
Ways to Discharge A Contract
Performance
Substantial Performance
Judicial Discharge
Mutual Termination
Wrongs against society as a whole
Criminal Law
Permits a predictable relatively quick and fair resolution of cases, using previous cases
Stare Decisis
Common Law System
Case Law, uses previous cases to determine verdict in new cases
Civil Law System
Uses codes and statutes to determine verdict in new cases
Requires giving an individual due process for taking away their fundamental rights
Substantive due process
Type of due process that makes sure proceedings are fair
Procedural Due Process
Requires that the terms of acceptance must exactly match the terms of offer to form a valid contract
Mirror Image Rule
Detrimental Reliance (Ex: Agree to move in, knocks down wall, does not move in)
Promissory Estoppel
When the terms of a contract do not bind the promisor to do anything, no consideration
Illusory Contract
When a lender makes a loan at a rate above the lawful maximum
Usury
A contract clause attempting to absolve a party of negligence or wrongs (agree not to sue)
Exculpatory Clause
A contract in which one side has all the bargaining power
Adhesion Contract
This occurs when a person unknowingly misrepresents information
Innocent misrepresentation
Suspends a contractual duty that has not been discharged.
Accord
