Congressional (Legislative - Makes Laws) - Commerce Clause - Powers: post offices, declare war, coin money, intellectual property

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Define Law

Set of enforceable laws that govern relationships between private parties and between individuals and society.

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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

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Natural Law

Universal, in your heart, determined by nature

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Positive Law

Must be written down, man-made

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Four Type of Cases When Federal Courts Have SMJ

Diversity > $75,000
Federal Issues
State v. State
Ambassadors

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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

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FIVE BOXES

Cause of Action
Right of Action
Subject Matter Jurisdiction: federal or state
Personal Jurisdiction: minimum contacts
Venue: most reasonable location

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Long Arm Statute

Can be held accountable to the extend that you have established minimum contacts

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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

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3 Types of State Courts

Trial
Appellate
State Supreme

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3 Types of Federal Courts

Trail
Appellate
US Supreme Court

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Federal Courts have jurisdiction over most…

Bankruptcy proceedings, federal income tax cases, maritime/admiralty cases

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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

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2nd Amendment

States that the right of people to keep and bear arms will not be infringed

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4th Amendment

Prohibits unreasonable searches and seizure of persons or property

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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

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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

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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

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Article I

Congressional (Legislative - Makes Laws)

Commerce Clause
Powers: post offices, declare war, coin money, intellectual property

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Article II

President (Executive - Carries Out Laws)

- Powers: state of the union, veto commander and chief, appoint federal judges

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Article III

Federal Court (Judicial - Evaluates Laws)

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The foreign state must have a substantial reason for treating a nonresident different from its resident citizen

Privileges and Immunities Clause

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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

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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

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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

1. Both have four parts and provide a cause of action 2. Contract is a consensual relationship, tort is not consensual 3. Tort involves personal injury 4. 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 1. Valid contract must exist 2. Third party must know about the contract 3. 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

1. Retain the Mirror Image Rule 2. Need All Material Terms 3. Modifications require consent and consideration 4. Option contracts require consideration 5. SOF varies

Points of UCC-2

Uniform Commercial Code - Movable and Tangible 1. Abandons Mirror Image Rule 2. Only Quantity is required 3. Modifications only require consent 4. 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

1. UCC 2 2. Nuptials 3. Guaranteeing the debt of another (unless for personal benefit) 4. Sale of immovable property 5. 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

1. Compensatory (cover price - contract) 2. Consequential (loss profits) 3. Punitive (rare) 4. Nominal (small) 5. Liquidated (built into contract)

Equity Damages/Remedies

1. Specific Performance 2. Injunction 3. Rescission 4. Reformation 5. 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