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77 Cards in this Set
- Front
- Back
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Define Law |
A set of enforceable rules governing two relationships
- Between Individuals - Between People and Society |
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Know 15 Sources of Law |
Federal and State (10) - -Constitution -Statutes -Case Law -Regulatory Law -Executive Order -Civil Code (State Only) -Law between private parties -Customs and industry standards -Natural Law -Theological Source -International Law -City Ordinances |
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Natural Law vs. Positive Law |
Natural Law -Moral Code -Innate Positive Law -Must be written down, if it is written, we follow it We gravitate towards a higher standard in law (natural law) |
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Criminal Law |
Very precise and in order to get indicted you must have violated something that is written in law. Criminalized only by positive law |
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State vs. Federal Courts - Which is more powerful? |
At first glance, always federal, unless not regulated by federal government. Federal judiciary has limited power, but that power is supreme States can hear virtually any type of case (General SMJ) |
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4 Cases when Federal Courts have SMJ |
-Federal Questions (constitutional law or federal statute) Limited JN - Disputes between citizens of different states +>$75,000 (Diversity) -Intellectual Property -Bankruptcy (exclusive) -Federal Tax Cases (exclusive) -Injuries on the high seas (exclusive) |
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4 case types which are almost always State Court Jurisdiction |
-Contracts -Family -Torts -Property |
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ADR - Alternative Dispute Resolution - 3 Types |
Negotiation - 2 parties Mediation - 2 parties + 3rd party mediator (non-binding) Arbitration - 2 parties + 3rd party mediator (binding). Once decided, typically no appeal |
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Elements of a Lawsuit - Parts of Litigation 5 Boxes |
-Cause of Action - Legitimate Cause/Real Controversy (Tort, Contract, Constitutional) -Right of Action - "proper party" / "standing" / can extend to spouse or child if you observe it -Subject Matter Jurisdiction - Federal vs. State -Personal Jurisdiction - Minimum Contacts -Venue - Logical hearing location Both PJ and V are waivable via contracts |
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General Court Systems |
-Trial Court -Appellate Court (Court of appeals) -Supreme Courts 80% of trial cases are upheld on appeal State Supreme court hears <2% of requested |
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State Courts |
-Trial - Judge and/or Jury -Appellate - 3 judge panel or "en banc" -State Supreme Court |
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Federal Courts |
-Possible Preemption -Trial - Judge and/or Jury -Appellate - 3 judge panel or "en banc" -5th circuit CoA in NOLA handles all TX,LA,MS -US Supreme Court - Washington DC |
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1st Amendment |
Guarantees the freedoms of religion, speech, and the press, and the rights to assemble peaceably and to petition the government |
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4th Amendment |
Prohibits unreasonable searches and seizures 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 payment when private property is taken for public use. Prohibits compulsory self-incrimination and double jeopardy. (right to remain silent) |
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10th Amendment |
Establishes that those powers neither delegated to the federal government nor denied to the states are reservered to the states and to the people |
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Article 1 |
-Congressional Powers - Congress often invokes the "Commerce Clause" as the source of power to enact federal legislation -Declare ware -Coin money -Regulate Interstate Commerce |
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Article 2 |
-Executive Powers - President -Appointment power -veto power -commander in chief |
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Article 3 |
-Judicial Powers -3 circumstances to go to federal court -Federal questions -Diversity +>$75,000 -Federal Tax cases |
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Article 4 - Clauses |
-Commerce -Equal Protection -Full Faith and Credit -Supremacy -Privileges and Immunities -Establishment and Free Exercise -Due Process |
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Commerce Clause |
National Government has the power to regulate interstate commerce |
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Equal Protection Clause |
Cannot deny based on gender, race, or religious beliefs |
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Full Faith and Credit Clause |
Every state must honor the judgements of other states |
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Supremacy Clause |
Preemption vs. Concurrent Regulation |
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Preemption (Supremacy) |
Occurs when congress chooses to act exclusively in an area in which he federal government and the states have concurrent powers |
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Privileges and Immunities Clause |
Prevents a state from imposing unreasonable burdens on citizens of another state |
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Establishment and Free Exercise |
Governments cannot impose religious beliefs and cannot limit you from exercising religion freely |
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Due Process Clause |
Focus on procedural due process. Entitled to a hearing |
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5 Tools for Pleadings |
-Complaint (Lawsuit) -Answer -Interrogatories (Set of questions) -Request for Documents -Deposition -Sworn Statement "affidavit" |
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Contract vs Tort |
-Both have 4 parts and provide a cause of action -Contract is a consensual relationship; tort is not consensual -Tort involves personal injury -Contracts have more precise damages and usually lower than torts |
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4 Intentional Torts |
-Assault -Battery -Defamation -Tortious Interference in a Contractual Relationship (TICR) |
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Assault |
Any intentional and unexcused threat of immediate harmful or offensive contact |
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Battery |
The completion of the act that caused the apprehension. Defined as unexcused and harmful |
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Defamation |
-Wrongfully hurting a person's good reputation -Statements of fact -Libel - Writing or other permanent form -Slander - Oral |
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TICR |
-Valid Contract Exists -3rd party knows about the contract (intent) -3rd party entices person to break contract |
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Tort in Negligence |
-Duty - to act in a reasonably prudent manner (n) -Breach - breach of duty (n) -Cause - breach caused the injury -Damage - injury is legally recognizable |
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Substitutes for Negligence |
-Breaching a statute - Negligence Per Se -Strict Liability (Auto Pay) -Products Liability |
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2 Forms of Strict Liability |
-Still need Cause and Damage -Abnormally Dangerous Activities -Wild Animals |
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Causation (Cause): 2 Components |
-Cause in fact - Chainlinking events -Proximate Cause - Close in time and space |
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Products Liability |
-Defective Design -Defective Manufacture -Failure to Warn |
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Defenses to Torts |
-Assumption of Risk - We go fishing and you cut your hand on a fish fin -Contributory Negligence - I rear end you and you are not wearing your seat belt |
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UCC-2 |
-Uniform Commercial Code -Movable tangible goods >$5,000 must be in writing |
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Statute of Frauds |
-Preventative Measures -Must be in writing and signed by parties unless the contract is fully executed |
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5 Types of Contracts That Must be in Writing |
1. UCC - 2 contracts >=$5,000 movable tangible goods 2. Nuptial contracts - pre-nup / post-nup 3. Guaranteeing the debt of another - does not have to derive any benefit 4.Buy/Sell immovable property (real estate) 5. Contracts longer than 1 year |
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4 Requirements for a Contract |
1. Agreement - Offer and Acceptance - does not have to be in writing 2. Capacity - Voidable - law must recognize them as competent parties 3. Consideration - Exchange of value - past or pre-existing duty do not count 4. Legality - void whole or part - contract's purpose must be to accomplish some goal that is legal and not against public policy |
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Acceptance |
-can be done by any reasonable method -constructive receipt -if receiver's fax machine jams or secretary throws the papers away, they are still responsible |
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The Mailbox Rule |
All communications are effective upon receipt EXCEPT acceptance (effective when put in the mailbox/email sent/etc.) |
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Consideration is/is not |
Consideration is: -Legal Value -Forbearance (refraining from an action that one has a legal right to undertake) -Accord and satisfaction/settlement -Release Consideration is NOT: -Preexisting duty - considered consideration -Past consideration - something happening in the past -Illegal Subject matter |
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Capacity/Legality Issues (Void vs. Voidable) |
-Capacity Issues (Voidable) -Legality (Void) - Unenforceable - Partial illegality leads to a partial void (striking out specific clauses and keeping the rest) |
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Contracts are Illegal if they contain: |
-Illegal drugs, gambling, usury, antitrust, fraud, prostitution, collusion, pornography, against public policy |
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Lacking Capacity Examples |
-Minor -Mentally Impaired -Duress -Lucid Interval (Alzheimer's) -Courts have a low tolerance level for intoxication cases (especially self-induced) |
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Unconscionability |
-Procedural - Language is hidden or really small font (should be at least 5-pt) -Substantive - Nature of the contract / contracts not to compete / contracts to commit a crime /contracts with an unlicensed person / contracts to gamble / contrats to discriminate |
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What Destroys an Offer? |
-Revocation -Rejection -Counteroffer - rejection plus new offer -Lapse of time -Destruction of subject matter (if offer accepted prior to destruction, still a binding contract) -death or incompetence |
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4 Contract Attributes |
-Unilateral vs. Bilateral -Formal vs. Informal -Express vs. "Implied in Fact" -Executory vs. Executed |
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Unilateral vs. Bilateral Contract |
-Unilateral - Promise for Action -Bilateral - Promise for Promise |
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Formal vs. Informal Contract |
-Formal - Writing required (statute of frauds) -Informal - no writing required (majority) |
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Express vs. "Implied in Fact" Contract |
-Express - Verbal or written -Implied in Fact - Based on behavior (purchase at the grocery store) -Quasi-contract "implied in fact" |
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Quasi-Contract |
-Implied in Law - Fabricated equity remedy -Not contracts - missing one of the parts -Unjust Enrichment - Ambulance ride example -Detrimental Reliance - Basketball ticket example |
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Executory vs. Executed Contract |
-Executory - neither party has performed -Executed - Fully performed |
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Unilateral vs. Bilateral Mistake |
-Unilateral - one party makes a mistake -Bilateral - both parties make mistakes -In most situations, mistakes are fully enforceable unless it is a bilateral mistake of fact |
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Mistake of Fact vs. Mistake of Value |
-Mistake of Value - enforced unless fraudulent representation (even bilateral will be enforced) -Mistake of Fact - Unilateral enforced absent fraud / Bilateral not enforced typically |
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Parol Evidence Rule vs. Statute of Frauds |
-PER- if contact is in writing, no oral evidence will be considered -SoF - The law requires the contract to be in writing -Most contracts subject to SoF are also subject to PER, except executed contracts |
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Exceptions to the Parol Evidence Rule |
1. Verbal testimony is allowed to cover ambiguities in the written contract 2. Verbal modifications to agreement (after signed) - subsequent modification |
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Third Party Rights - Contracts |
-Contract may prohibit or be "highly personal" -Most contractual rights and obligations are transferrable (mortgage transfer) -Personal or Unique skills cannot be transferred -Parties must give notice to each other about changing a party to the contract. |
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10 Remedies (Contractual Damages) |
Monetary Damages: Compensatory, Consequential, Liquidated, Nominal, and Punitive Equitable Relief: Rescind Contract, Reformation, Specific Performance, and Injunction COMBO (number 10) |
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Compensatory Remedy |
-Losses directly related to contract relationship -Cover minus cost = $3.50 - $3.00 = $0.50 |
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Consequential Remedy |
-Lost profits -Hard to get this remedy unless it is in the contract |
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Liquidated Remedy |
-$/day -put in contractual agreement -reasonable damages if breached -limits amount of exposure "buyout provision" |
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Nominal Remedy |
-Breaching party pays $1 -Plaintiff finds better deal and no real damage is done |
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Punitive Remedy |
-"Bad breacher" -Exemplary damages (very rare) -Makes an example out of the breacher |
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Rescinding Contract Remedy |
-Voiding contract and attempt to restore parties to the status quo prior to the formation of the contract |
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Reformation Remedy |
-Rewrite and/or strike provisions of the contract to make it legal, reasonable, etc. |
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Specific Performance Remedy |
-Must be unique (heirloom gold watch vs. rolex) |
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Injunction Remedy |
-prevention of something, restraining, or cease and desist order; very powerful |
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Anticipatory Repudiation |
-Can seek alternative immediately if other party communicates they intend to breach -allows the non-breacher to cover immediately -non-breacher cannot sit on a breach ; obligated to mitigate damaged (find alternative) |
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Duty to Mitigate Damages cause by Breach |
-The non-breaching party must take reasonable measure, not extraordinary measures -normally the plaintiff who must mitigate damages |
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4 ways to Discharge a Contract |
1. Performance - Perform it 2. Substantial Performance 3. Judicial Discharge 4. Mutual Termination |
