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131 Cards in this Set

  • Front
  • Back
• What is law? -
The law consists of rules that regulate the conduct of individuals, businesses, and other organizations within society. It is intended to protect persons and their property from unwanted interference from others. The law forbids persons from engaging in certain undesirable activities.
• Definition of Law
A body of rules of action or conduct prescribed by the controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences
• Functions of the Law:
1. Keep the peace
2. Shape Moral standards
3. Promote social justice
4. Maintain the status qui
5. Facilitate orderly change
6. Facilitate planning
7. Provide basis for compromise
8. Maximize individual freedom
• Qualities of the Law –
1. Fairness of the Law
2. Flexibility of the Law - U.S law evolves and changes along with the norms of society, technology, and the growth and expansion of commerce in the United States.
1. Natural Law School
Postulates that law is based on what is “correct”. Law should be based on morality and ethics.
2. Historical School
Believes that law is an aggregate of social traditions and customs.
3. Analytical School
Maintains that law is shaped by logic
4. Sociological School
Asserts that law is a means of achieving and advancing certain sociological goals.
5. Command School
Believes that law is a set of rules developed, communicated, and enforced by the ruling party.
6. Critical Legal Studies School
Maintains that legal rules are unnecessary and that legal disputes should be solved by applying arbitrary rules based on fairness.
7. Law and Economics
Believes that promoting market efficiency should be the central concern of legal decision making.
Sources of Law in the United States
• Constitutions
• Treaties
• Codified law: Statutes and ordinances
• Executive orders
• Constitutions
The U.S. Constitution establishes the federal government and enumerates its powers .Created three branches:
1. Legislative
2. Executive
3. Judicial
Powers not given to the federal government are reserved to the states.
State constitutions establish state governments and enumerate their powers.
• Regulations and Orders of Administrative Agencies –
• Regulations and Orders of Administrative Agencies –
1. Administrative agencies are created by the legislative and executive branches of government.
2. They may adopt rules and regulations and may enforce and interpret statutes.
• Judicial decisions
1. Courts decide controversies.
2. Judicial decisions usually state the rationale used by the court in reaching that decision.
• The Doctrine of Stare Decisis
Based on the common law tradition, past court decisions become precedent for deciding future cases.
1. Lower courts follow the precedent established by higher courts.
2. Both federal and state courts follow the precedents established by U.S. Supreme Court decisions.
3. Courts in one jurisdiction are not bound by precedent of another jurisdiction, but may look at it for guidance .
• Functions of the Law:
1. Keep the peace
2. Shape Moral standards
3. Promote social justice
4. Maintain the status qui
5. Facilitate orderly change
6. Facilitate planning
7. Provide basis for compromise
8. Maximize individual freedom
• Qualities of the Law –
1. Fairness of the Law
2. Flexibility of the Law - U.S law evolves and changes along with the norms of society, technology, and the growth and expansion of commerce in the United States.
1. Natural Law School
Postulates that law is based on what is “correct”. Law should be based on morality and ethics.
2. Historical School
Believes that law is an aggregate of social traditions and customs.
3. Analytical School
Maintains that law is shaped by logic
4. Sociological School
Asserts that law is a means of achieving and advancing certain sociological goals.
5. Command School
Believes that law is a set of rules developed, communicated, and enforced by the ruling party.
6. Critical Legal Studies School
Maintains that legal rules are unnecessary and that legal disputes should be solved by applying arbitrary rules based on fairness.
7. Law and Economics
Believes that promoting market efficiency should be the central concern of legal decision making.
Sources of Law in the United States
• Constitutions
• Treaties
• Codified law: Statutes and ordinances
• Executive orders
• Constitutions
The U.S. Constitution establishes the federal government and enumerates its powers .Created three branches:
1. Legislative
2. Executive
3. Judicial
Powers not given to the federal government are reserved to the states.
State constitutions establish state governments and enumerate their powers.
• Regulations and Orders of Administrative Agencies –
• Regulations and Orders of Administrative Agencies –
1. Administrative agencies are created by the legislative and executive branches of government.
2. They may adopt rules and regulations and may enforce and interpret statutes.
• Judicial decisions
1. Courts decide controversies.
2. Judicial decisions usually state the rationale used by the court in reaching that decision.
• Priority of Law in the United States
1. The U.S. Constitution and treaties take precedence over all other laws.
2. Federal statutes take precedence over federal regulations.
3. Valid federal law takes precedence over conflicting state or local law.
4. State constitutions rank as the highest state law.
5. State statutes take precedence over state regulations.
6. Valid state law takes precedence over local laws.
• Critical Legal Thinking
1. specifying the issue presented by a case
2. identifying the key facts in the case and applicable law
3. applying the law to the facts
4. reaching a conclusion that answers the issue presented
1. Plaintiff
2. Defendant
3. Petitioner or Appellant
4. Respondent or Appellee
1. Plaintiff - The party who originally brought the lawsuit.
2. Defendant - The party against who the lawsuit has been brought.
3. Petitioner or Appellant - The party who has appealed the decision of the trial court or lower court.
4. Respondent or Appellee - The party who must answer the petitioner’s appeal.
• State Court Systems:
1. Limited-Jurisdiction Trial Courts
2. General-Jurisdiction Trial Courts
3. Supreme Court
4. Intermediate Appellate Courts
• Limited – Jurisdiction Trial Courts
1. Traffic courts
2. Juvenile courts
3. Justice-of-the-peace courts
------------------------------------------
4. Probate courts
5. Family law courts
6. Small claims courts
7. Courts that hear misdemeanor criminal law cases and civil lawsuits under a certain dollar amount
• General – Jurisdiction Trial Courts
1. Hear cases of a general nature that are not within the jurisdiction of limited-jurisdiction courts
2. Testimony and evidence at trial are recorded and stored for future reference
Intermediate Appellate Courts
1. A court that hears appeals from trial courts
2. Reviews the trial court record to determine if there have been any errors at trial that would require reversal or modification of the decision
Highest State Court
1. The highest court in a state court system
2. Hears appeals from intermediate state courts and certain trial courts
3. No new evidence or testimony is heard
4. Decisions of state supreme courts are final, unless a question of law is involved that is appealable to the U.S. Supreme Court.
• A Typical State Court System
1. State Supreme Court
2. State Appeals Courts
3. State Trial Courts of General Jurisdiction
• Civil Division
• Criminal Division
• Probate Division
• Domestic Relations Division
• Juvenile Division
4. Small Claims Courts
5. Justice of the Peace Courts
6. Municipal Courts
The Federal Court System –
1. Special Federal Courts
2. U.S. District Courts
3. U.S. Courts of Appeals
4. U.S. Supreme Court
U.S. Supreme Court
1. The Supreme Court was created by Article III of the U.S. Constitution
2. The Supreme Court is the highest court in the land and is located in Washington, D.C.
Special Federal Courts
1. Federal courts that hear matters of specialized or limited jurisdiction
2. They include:
• U.S. Tax Court
• U.S. Claims Court
• U.S. Court of International Trade
• U.S. Bankruptcy Court
U.S. District Courts
1. The federal court system’s trial courts of general jurisdiction
2. They are empowered to:
• Impanel juries
• Receive evidence
• Hear testimony
• Decide cases
• Most federal cases originate in federal district court
• U.S. Courts of Appeals
1. The federal court system’s intermediate appellate courts
2. These courts hear appeals from the district courts located in their circuit
3. Review the record of lower courts or administrative agency proceedings
4. Determine if there has been any error that would warrant reversal or modification of the lower court decision
• U.S. Supreme Court
1. The Supreme Court hears appeals from:
• federal circuit courts of appeals
• federal district courts, under certain circumstances
• special federal courts
• the highest state courts.
2. No new evidence or testimony is heard
3. The lower court record is reviewed to determine whether there has been an error that warrants a reversal or modification of the decision
4. The Supreme Court’s decision is final
5. The Supreme Court can issue the following types of decisions:
• Unanimous decision
• Majority decision
• Plurality decision
• Tie decision
6. Justices may issue a concurring or dissenting opinion
• Petition for Certiorai

• Writ of Certiorai
1. A petition asking the Supreme Court to hear case.

1. An official notice that the Supreme Court will review a case
• Jurisdiction of State Courts
• State courts hear any cases that federal courts do not have jurisdiction to hear:
• Matters involving state law
• Real estate
• Business law
• Sales and lease agreements
• Negotiable instruments.
• Jurisdiction of Federal and State Courts
1. Exclusive Federal Jurisdiction
• Admiralty
• Antitrust
• Bankruptcy
• Copyright
• Federal Crimes
• Patents
• Suits against the U.S.
• Other specified federal statutes

2. Concurrent Jurisdiction
• Federal questions
• Diversity of citizenship cases

3. Exclusive State Jurisdiction
• Matters not subject to federal jurisdiction
The Pretrial Litigation Process
1. Pleadings
2. Discovery
3. Settlement Conference
4. Dismissals and Pretrial Judgments
• The Pleadings
1. Complaint
2. Answer
3. Cross-Complaint
4. Reply
• Complaint and Summons
1. Plaintiff files a complaint
• Lists parties
• Allege facts and laws violated
• Prayer for relief
2. Court issues summons
Answer:
• Defendants must file answer admitting or denying allegations
1. If all allegations are admitted, judgment entered against defendant
2. If no answer is filed, default judgment entered
3. May assert affirmative defenses
Cross-Complaint and Reply
• The defendant sues the plaintiff for damages or some other remedy
• Original plaintiff must file a reply and serve on defendant
Intervention and Consolidation
• Intervention
1. Other parties have interest in lawsuit and become parties
• Consolidation
1. Several plaintiffs have filed lawsuits stemming from same situation
2. Court will consolidate if no undue prejudice
3. Reduce strain on court system
Statute of Limitations
• A statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant.
• If a lawsuit is not filed within this time period, the plaintiff loses his or her right to sue.
• Federal and state governments have established statutes of limitations for each type of lawsuit.
Discovery
Discovery: A legal process during which both parties engage in various activities to discover facts of the case from the other party and witnesses prior to trial.
Discovery serves several functions:
Discovery serves several functions:
1. Preventing surprise
2. Allowing parties to thoroughly prepare for trial
3. Preserving evidence
4. Saving court time
5. Promoting the settlement of cases
The major forms of discovery are
• Depositions
• Interrogatories
• Production of documents
• Physical and mental examination
• Depositions :
1. Oral testimony given by party or witness
2. Under oath
3. Preserves evidence
4. Parties must give depositions
5. Witnesses can be compelled by subpoena
• Interrogatories
1. Written questions submitted by one party to the other
2. May require documents
3. Must be answered and returned within a set time period
4. Attested to
• Production of documents
1. Documents that parties request the other side produce or make available for review
• Physical and mental examination
1. If the physical or mental condition of a party are at question, and examination by an expert may be required.
Dismissals and Pretrial Judgments
• Pretrial Motion
• Motion for Judgment on the Pleadings
• Motion for Summary Judgment
• Pretrial Motion
1. A motion a party can make to try to dispose of all or part of a lawsuit prior to trial.
2. Motion for judgment on the pleadings
3. Motion for summary judgment
• Motion for Judgment on the Pleadings
1. Motion that alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts
• Motion for Summary Judgment
1. Motion that asserts that there are no factual disputes to be decided by the jury.
2. Judge can apply the proper law to the undisputed facts and decide the case without a jury.
3. These motions are supported by affidavits, documents, and deposition testimony.
Settlement Conference
1. Federal court rules and most state rules allow for a pretrial hearing or settlement conference
2. Ninety percent of all cases settle before trial
Cost-Benefit Analysis of a Lawsuit
The following factors should be considered in deciding whether to bring or settle a lawsuit:
1. The probability of winning or losing.
2. The amount of money to be won or lost.
3. Lawyers’ fees and other costs of litigation.
4. Loss of time by managers and other personnel.
5. The unpredictability of the legal system and the possibility of error.
6. Other factors peculiar to the parties and lawsuit.
7. The long-term effects on the relationship and reputation of the parties.
8. The amount of prejudgment interest provided by the law.
9. The aggravation and psychological costs associated with a lawsuit.
The Trial
• Pursuant to the Seventh Amendment to the U.S. Constitution, a party to an action at law is guaranteed the right to a jury trial in cases in federal court.
• Most state constitutions contain a similar guarantee for state court actions.
The Trial (continued)
• If either party requests a jury, the trial will be by jury.
• If both parties waive their right to a jury, the trial will be without a jury.
Phases of a Trial
 Jury Selection
 Opening Statements
 The Plaintiff’s Case
 The Defendant’s Case
 Rebuttal and Rejoinder
 Closing Arguments
 Jury Instructions
 Jury Deliberation
 Entry of Judgment
The Appeal
• In a civil case,
1. either party can appeal the trial court’s decision
2. Appeal can be filed once a final judgment is entered.

• In a criminal case,
1. Only the defendant can appeal.
• The appeal is made to the appropriate appellate court.

• Notice of appeal must be filed within a prescribed time after judgment is entered.
Alternative Dispute Resolution (ADR)
• Methods of resolving disputes other than litigation.
• Developed in response to the expense and difficulty of bringing a lawsuit.
Alternative Dispute Resolution (ADR)
• Arbitration
1. Parties choose neutral third party to hear evidence and testimony and decide the case.
2. Arbitrator makes a decision and enters an award.
3. Arbitration may be binding or non-binding
Key ADR Legislation
1. Uniform Arbitration Act
• Adopted by half of the states.
• Promotes the arbitration of disputes at the state level.
2. Federal Arbitration Act
• Arbitration agreements involving commerce are valid, irrevocable, and enforceable contracts.
Mediation and Conciliation
• Mediation:
1. Parties choose a neutral third party to assist them
2. Parties reach settlement
3. Mediator does not make judgment or issue award
• Conciliation
1. Parties use an interested third party to act as mediator
Minitrial
• Short session in which lawyers for each side present their cases to representatives of each party who have the authority to settle the dispute.
Fact-Finding
• Process in which the parties hire a neutral party to investigate the dispute and report findings back to both sides
Judicial Referee
• Court-appointed referee who conducts a private trial and renders a judgment
• Parties reserve their right to appeal
• Contracts are the basis of many daily activities.
1. They provide the means for individuals and businesses to sell and otherwise transfer property, services, and other rights.
2. Without enforceable contracts, commerce would collapse.
3. Introduction (continued)
4. Contracts are voluntarily entered into by parties.
5. The terms of the contract become private law between the parties.
Legally Enforceable Contract
one party fails to perform as promised, the other party can use the court system to enforce the contract and recover damages or other property
• Parties to a Contract
1. Offeror – the party who makes an offer to enter into a contract.
2. Offeree – the party to whom an offer to enter into a contract is made.
To be an enforceable contract, four basic requirements must be met:
1. Agreement
2. Consideration
3. Contractual Capacity
4. Lawful Object
1. Agreement
• There must be agreement between the parties.
• This requires an offer by the offeror and an acceptance of the offer by the offeree.
• There must be mutual assent by the parties.
2. Consideration
• The promise must be supported by a bargained-for consideration that is legally sufficient.
• Gift promises and moral obligations are not considered supported by valid consideration.
3. Contractual Capacity
• The parties to a contract must have contractual capacity.
• Certain parties, such as persons adjudged to be insane, do not have contractual capacity.
4. Lawful Object
• The object of the contract must be lawful.
• Contracts to accomplish illegal objects or contracts that are against public policy are void.
Defenses to the Enforcement of a Contract
1. Genuineness of Assent
• Writing and Form
1. Genuineness of Assent
• The consent of the parties to create a contract must be genuine.
• There is no real consent if the consent is obtained by:
1. Duress
• Undue influence
• Fraud
• Writing and Form
• The law requires that certain contracts be in writing or in a certain form.
• Failure of these contracts to be in writing or be in proper form may be raised against the enforcement of the contract.
1. The Common Law of Contracts
• Contract law developed primarily by state courts.
2. The Uniform Commercial Code (UCC)
• Comprehensive statutory scheme that includes laws that cover aspects of commercial transactions.
Restatement of the Law of Contracts
• Compilation of model contract law principles drafted by legal scholars.
• The Restatement is not law.
• However, lawyers and judges often refer to it for guidance in contract disputes.
• Currently in its second edition.
Sources of Contract Law
1. The Common Law of Contracts
2. The Uniform Commercial Code (UCC)
3. The Restatement of the Law of Contracts
Classifications of Contracts
Bilateral Contract
Unilateral Contract
Express Contract
Bilateral Contract
• A contract entered into by way of exchange of promises of the parties.
• “A promise for a promise.”
Unilateral Contract
• A contract in which the offeror’s offer can be accepted only by the performance of an act by the offeree.
• “A promise for an act.”
Express Contract
• An agreement that is expressed in written or oral words
Implied-in-fact Contract
• A contract where agreement between parties has been inferred from their conduct
Objective Theory of Contracts
• The intent to enter into an express or implied-in-fact contract is judged by the reasonable person standard.
• The subjective intent of a party to enter into a contract is irrelevant.
Quasi-Contracts (Implied-in-Law Contracts)
• Allows a court to award monetary damages to a plaintiff for providing work or services to a defendant even though no actual contract existed between the parties.
• Intended to prevent unjust enrichment and unjust detriment.
Formal Contracts
• Contracts that require a special form or method of creation.
1. Contracts Under Seal
2. Recognizances
3. Negotiable Instruments
4. Letters of Credit
Informal Contracts
• No special form or method is required for their creation.
• Fully enforceable and may be sued upon if breached.
1. Leases
2. Sales Contracts
3. Service Contracts
Valid Contract
• Contract that meets all of the essential elements to establish a contract.
• Enforceable by at least one of the parties.
Void Contract
• A contract that has no legal effect.
• Neither party is obligated to perform.
• Neither party can enforce the contract
Voidable Contract
• Contract where one or both parties have the option to avoid their contractual obligations.
• If a contract is avoided, both parties are released from their contractual obligations.
Unenforceable Contract
• A contract where the essential elements to create a valid contract are not met.
• However, there is some legal defense to the enforcement of the contract.
Executed Contract
• A contract that has been fully performed on both sides.
• A completed contract
Executory Contract
• A contract that has not been fully performed by either or both sides.
Introduction
• Contracts are voluntary agreements between the parties.
• One party makes an offer that is accepted by the other party.
• Without mutual assent, there is no contract.
Agreement
• The manifestation by two or more persons of the substance of a contract
Parties
• Offeror
• Offeree
• Offeror
– Person who makes an offer
• Offeree
– Person to whom an offer has been made
Offer:
• “The manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”
[Section 24 of the Restatement (Second) of Contracts]
***Requirements of an Offer
• For an offer to be effective:
1. The offeror must objectively intend to be bound by the offer.
2. The terms of the offer must be definite or reasonably certain.
3. The offer must be communicated to the offeree.
Objective Theory of Contracts
• A theory that says the intent to contract is judged by the reasonable person standard and not by the subjective intent of the parties.
• No valid contract results from:
1. Preliminary negotiations
2. Offers that are made in jest, anger, or undue excitement
3. Offers that are an expression of opinion
Definiteness of Terms
• The terms of an offer must be clear enough to the offeree to be able to decide whether to accept or reject the terms of the offer.
• If the terms are indefinite, the courts cannot enforce the contract or determine an appropriate remedy for its breach.
• An offer (and contract) must contain the following terms
1. Identification of the parties
2. Identification of the subject matter and quantity
3. Consideration to be paid
4. Time of performance
Implied Terms
• The court can supply a missing term if a reasonable term can be implied.
• Terms that are supplied in this way are called implied terms.

Special Offer Situations
Advertisements
Rewards
Auctions
Auction with reserve
• Unless expressly stated otherwise, an auction is an auction with reserve, i.e., the seller retains the right to refuse the highest bid and withdraw the goods from auction
Auction without reserve
• An auction in which the seller expressly gives up his or her right to withdraw the goods from sale and must accept the highest bid
Termination of an Offer by Action of the Parties
• Revocation
• Rejection
• Counteroffer
• Revocation
– Withdrawal of an offer by the offeror terminates the offer.
– An offeror can revoke an offer at any time prior to its acceptance by the offeree.
• Rejection
– Express words or conduct by the offeree that rejects an offer.
– Rejection terminates the offer.
• Counteroffer
– A response by an offeree that contains terms and conditions different from or in addition to those of the offer.
– A counteroffer terminates an offer.
Termination of the Offer by Operation of Law
• Destruction of the subject matter

• Death or incompetency of the offeror or offeree
• Supervening illegality
• Lapse of time
• Destruction of the subject matter
The offer terminates if the subject matter of the offer is destroyed through no fault of either party prior to its acceptance
Death or incompetency of the offeror or offeree
– The death or incompetency of either party terminates the offer.
Supervening illegality
– The enactment of a statute, regulation, or court decision that makes the object of an offer illegal.
– This action terminates the offer.
Lapse of time
– An offer terminates when a stated time period expires
Acceptance
• A manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offer as measured by the objective theory of contracts.
[Section 50 of the Restatement (Second) of Contracts]
• Only the offeree can legally accept an offer and create a contract.
• The offeree’s acceptance must be unequivocal.
– Mirror image rule requires the offeree to accept the offeror’s terms.
• Silence is not considered acceptance even if the offeror states that it is.
• Contract law establishes the following rules concerning the time and mode of acceptance:
– Mailbox Rule
– Proper Dispatch Rule
– Mode of Acceptance
• Express Authorization
• Implied Authorization
• Mailbox Rule
1. A rule that states that an acceptance is effective when it is dispatched, even if it is lost in transmission.
2. Also called the acceptance-upon-dispatch rule.
3. If an offeree first dispatches a rejection and then sends an acceptance, the mailbox rule does not apply to the acceptance.
• Proper Dispatch Rule
1. The acceptance must be properly dispatched.
2. The acceptance must be properly addressed, packaged, and posted to fall within the mailbox rule.
3. Under common law, if an acceptance is not properly dispatched, it is not effective until it is actually received by the offeror.
Mode of Acceptance
Express Authorization
• A stipulation in the offer that says the acceptance must be by a specified means of communication.
• Use of an unauthorized means of communication makes acceptance not effective.
Implied Authorization
• Mode of acceptance that is implied from what is customary in similar transactions, usage of trade, or prior dealings between the parties.
Offer and Acceptance: Summary (1 of 2)
Offer and Acceptance: Summary (2 of 2)