Chapter 1: Introduction to Law and Legal Reasoning

Breaches (break, or fails to perform contracts) to violate a law, by an act or an omission, or to break a legal obligation that one owes to another person or to society Uniform laws model laws for the states to consider adopting Sources of American law or Primary sources of law The U.S. Constitution and the constitutions of the various states Statutory law laws passed by Congress, state legislatures, or local governing bodies Regulations created by administrative agencies Case law and common law doctrines judge made laws Secondary Sources of law are books and articles that summarize and clarify the primary sources of law Administrative Procedure Act Restatements of the Law summarizes the common law rules followed by most states *Restatement of what the law is on what the law should be U.S. Constitution is the supreme law of the land Under the common law, there are 2 types of remedies Courts of law or kings courts: (monetary relief; i.e. land, chattel, money) judges are appointed by king Courts of equity: (non-monetary relief) based on notions of justice and fair dealing CLEAR, CERTAIN, CONVINCING The remedies granted by the equity courts became known as remedies in equity Specific performance ordering a party to perform an agreement as promised Injuction ordering a party to cease engaging in a specific activity or to undo some wrong Rescission the cancellation of a contractual obligation Precedents - A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts Precedents and other forms of positive law are referred to as binding authority and must be followed In cases of first impression where there is NO precedent, the court may refer to positive law public policy and widely held social values in order to craft the best new precedent STARE DECISIS to stand on decided cases Adds predictability and stability to law and also increases efficiency The decisions made by a higher court are binding on lower courts A court should not overturn its own precedents unless there is a compelling reason to do so IRAC Issue what is the question to be resolved? Rule what law governs this matter? Application Apply the law to the facts Conclusion Decision or Verdict Forms of Legal Reasoning Deductive Reasoning make use of syllogism, a type of logical relationship involving a major premise and a minor premise Linear Reasoning Proceeds from point to point, with the final point being the conclusion Reasoning by Analogy Analysis that compares facts of present case with facts of similar previously decided cases Substantive vs. Procedural Law Substantive law consists of all laws that define, describe, regulate, and create legal rights and obligations Procedural law provides the steps one must follow in order to avail oneself of ones legal rights or enforce anothers legal obligations School of Thought Natural Law School there is a universal law applicable to all human beings Positivist School- centered on the assumption that there is no law higher than the laws created by the government Historical School stresses the evolutionary nature of law and looks to doctrines that have withstood the passage of time for guidance in shaping present laws Legal Realism advocates a less abstract and more realistic and pragmatic approach to the law and takes into account customary practices and the circumstances surrounding the particular transaction Civil law vs. Criminal Law *Ethics is HIGHER than Law *Law is always the minimal standard, ethics is the highest *American Law is based on English Law *One of the important functions of law is to provide: stability and predictability *the common law is called because it was more or less uniform throughout England *Administrative law is public law

Chapter 2: Courts and Alternative Dispute Resolution

Jurisdiction the power to speak the law is the power of a court to hear a dispute and to speak the law into a controversy and render a verdict that legally binding on the parties to the dispute In personam jurisdiction (personal jurisdiction) on over any person or business that resides in a certain geographic area In rem jurisdiction jurisdiction over the thing on over property that is located within its boundaries Long arm statute jurisdiction over certain out-of-state defendants based on activities that took place within the state In order to exercise long arm statute, a defendant must demonstrate minimum contacts Corporate Minimum Contacts the corporation must advertise or sell its products within the state or places its goods into the stream of commerce with the intent that the goods be sold in the state Limited Jurisdiction Probate courts matters relating to the transfer of a persons assets and obligations after that persons death including issues relating to the custody and guardianship of children Bankruptcy courts matters with only bankruptcy proceedings Concurrent (both state & federal) vs. Exclusive (one or the other) jurisdiction Diversity of Citizenship applies whenever a federal court has jurisdiction over a case without a federal question The plaintiff and defendant must be residents of different states A foreign country and citizens of different states The dollar amount in controversy must exceed $75,000 Sliding-Scale Standard determining for personal jurisdiction over an out-of-state Internet-based defendant Question of fact deals with what really happened in regard to the dispute being tried Question of law concerns the application or interpretation of the law Writ of certiorari order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review Alternative Dispute Resolution (ADR) Negotiation parties attempt to settle their dispute informally with or without attorneys to represent them Mediationa neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution Arbitration an arbitrator hears a dispute and imposes a resolution on the parties. Courts can only intervene if the arbitrator is found guilty of misconduct in refusing to hear evidence or the award granted violates a well defined public policy but the court will usually do nothing Early neutral case evaluation the case evaluator assesses the strengths and weaknesses of each partys claims Mini-trial each partys attorney briefly argues the partys case before a panel of representatives from each side who have the authority to settle the dispute Summary jury trials parties present their arguments and evidence and the jury renders a verdict *Judicial review remember Marbury v. Madison * Most used is settled not arbitration, negotiation or litigation *Venue refers to the most appropriate location for a trial *A federal court can exercise jurisdiction: a forum selection clause *STATE: local trial courts state trial courts state court of appeals Highest State Courts *FEDERAL: FAA/U.S. District Courts/specialized U.S. courts U.S. courts of appeals Supreme Court *Unconstitutional, unreasonable, inconsistent with the enabling legislation * KNOW Arbitration Clause

Chapter 3: Court Procedures

Court Procedure: accident/breach of contract party consults with attorney informal investigation plaintiffs attorney files complaint defendant notified of lawsuit defendants attorney files answer to complaint or motion to dismiss motion for judgment on the pleadings discovery motion for summary judgment further discovery pretrial conference trial posttrial motions appeal steps to enforce and collect judgment Pretrial Pleadings: The complaint and answer Motion to dismiss asking the court to dismiss the case for the reasons stated in the motion Defendant can dismiss if the plaintiff fails to state a claim for which a relief can be granted, improper service, lack of personal jurisdiction Motion to strike asking the court to delete certain paragraphs from the complaint Motion to make more definite and certain asking plaintiff to clarify the basis of plaintiffs cause of action Motion for judgment on the pleadings asking the court to decide the issue solely on the pleadings without proceeding to trial Motion to compel discovery asking the court to compel the other party to comply with a discovery request Motion for summary judgment asking the court to enter judgment in his or her favor without a trial. Can be supported by evidence outside the pleadings discovery process of gathering evidence. (depositions, interrogatories, requests for documents) Pretrial Conference trying to settle the dispute before the trial Jury Selection Voir Dire Trial Opening Statements Examination of Witnesses Direct vs. Cross-Examination Motion for a judgment as a matter of law when there is insufficient evidence to raise an issue of fact Closing Arguments, Jury Instructions, and Verdict Posttrial Motion for a new trial Motion for judgment n.o.v notwithstanding the verdict Only granted when the jurys verdict was unreasonable Appeal Filing the appeal, appellate review, and further review Writ of execution order directing the sheriff to seize and sell the defendants nonexempt assets, or property Service of Process plaintiff must deliver a copy of the complaint and a summons. Affirmative Defense - a response to a plaintiffs claim that does not deny the plaintiffs facts but attacks the plaintiffs legal right to bring an action. *American and English court systems follow the adversarial system of justice *Affidavits are sworn statements by parties or witnesses *Disposition is sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official *VOIR DIRE jurors picked from a pool *Hearsay is testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement *Standard proof is a preponderance of the evidence *AFFIRMATIVE DEFENSE = SELF-DEFENSE

Chapter 4: Constitutional Authority to Regulate Business

Federal Form of Government Shares power between national and state governments National government has limited, enumerated powers delegated from States Regulatory Powers of States 10th Amendment Police Powers regulate private activities to protect or promote the public order, health, safety, and general welfare Privileges and Immunities Clause requires states not to discriminate against one anothers citizens. A resident of one state cannot be treated as an alien when in another state; he or she may not be denied such privileges and immunities as legal protection, access to courts, travel rights, and property rights States must have a substantial reason for treating the nonresident differently Full Faith and Credit Clause (applies to only civil matters) ensures that rights established under deeds, wills, contracts, and similar instruments in one state will be honored by other states Commerce Clause (Gibbons v. Ogden) permits Congress to regulate Commerce with foreign nations and among the several states Provides the basis for the national governments extensive regulation of state and even local affairs Dormant Commerce Clause national government has the exclusive authority to regulate commerce that substantially affects trade and commerce among the states Supremacy Clause Constitution is the supreme law of the land Establishment Clause prohibits the government from establishing a state-sponsored religion. Separation of church/state Free Exercise Clause guarantees that a person can freely express their religion or have no religious beliefs Probable Clause reasonable grounds to believe the existence of facts warranting certain actions, such as the search or arrest of s person Preemption when Congress chooses to act exclusively when national and state governments have concurrent powers Checks and Balances Legislative creates laws Executive enforce laws Judicial interprets laws A restriction on commercial speech will be considered valid as long as: It seeks to implement a substantial government interest It must directly advance that interest It must go no further than necessary to accomplish its objective Unprotected Speech Firghting words, obscene speech (Miller v. California) Online Obscenity Self-Incrimination 5th Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself (extends only to natural persons) Due Process Clause no person shall be deprived of life, liberty, or property without due process of law Procedural Due Process government must give a person proper notice and an opportunity to be heard Substantive Due Process protects an individuals life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them. Limits legislative and executive capacities Equal Protection Clause government cannot enact laws that treat similarly situated individuals differently Strict Scrutiny Test any suspect class must serve a compelling state interest Intermediate Scrutiny (involves discrimination based on gender or legitimacy) to be constitutional, laws must be substantially related to important government objectives Rational Basis Test (applied to matters of economic or social welfare) laws will be constitutional if there is a rational basis relating to legitimate government interest Privacy Rights Fundamental right not expressly found in the constitution but derived from 1st, 5th, and 14th Amendments Laws and policies affecting privacy are subject to the compelling interest test *Corporate political speech is protected by the 1st Amendment

Chapter 6: Intentional Torts and Privacy

Torts - wrongs and compensation The purpose of tort law is to provide remedies for the invasion of various protected interest Damages Compensatory damages intended to compensate to reimburse a plaintiff for actual losses Special damages compensates for quantifiable monetary loss General damages non-monetary Punitive damages punishments. Only when defendants conduct was egregious or reprehensible Tortfeasor the one committing the tort Intentional Torts Assault intentional or unexcused act but no contact necessary Battery intentional or unexcused harmful physical contact (the completion of the assault) False Imprisonment intentional confinement or restrain of another persons activities without justification Defenses to Assault & Battery Consent Self-Defense (with reasonable force) Defense of Other (with reasonable force) Defense of Property Intentional Infliction of Emotional Distress intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another Actionable capable of serving as the ground for a lawsuit ( must be extreme or outrageous) Statement of fact vs. Statement of opinion Statement of opinion normally are not actionable Lane cheats on his taxes vs. Lane is a jerk Defamation wrongfully hurting a persons good reputation (must be false statements) Libel writing or other permanent form (such as digital recording) General damages are presumed and plaintiff does NOT have to show actual injury Slander oral (must prove special damages) In order to be considered as slander per se (no proof is necessary), a person must state that another has a particular type of disease committed improprieties while engaging in a profession or trade committed or has been imprisoned for a serious crime is unchaste and has engaged in serious sexual misconduct Defenses to Defamation True facts Privileged Speech Absolute privilege only in judicial proceedings and certain government proceedings Qualified privilege publication is limited to those who have a legitimate interest in the communication Public Figures fair game to defame a public figure UNLESS the state ments are made with Actual malice must be made with either knowledge of its falsity or a reckless disregard of the truth Invasion of Privacy Appropriation of identity - using a persons name, or other likeness for commercial purpose w/o permission Intrusion into an individuals affairs False light publication of information that places a person in a false light Public disclosure of private facts when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing Appropriation (right of publicity as a property right) the use by one person of another persons name, likeness, or other identifying characteristic without permission and for the benefit of the user Fraudulent Misrepresentation (FRAUD or SCIENTER) intentional deceit for personal gain Misrepresentation of facts with knowledge that they are false Intent to induce another party to rely on the misrepresentation A justifiable reliance on the misrepresentation by the deceived party Damages suffered as a result of that reliance Casual connection between the misrepresentation and the injury suffered Puffery exaggerating claims concerning the quality of goods offered for sale Torts related to Abusive or Frivolous Litigation include: malicious prosecution and abuse of process Business Torts wrongful interference with the business rights of another Three elements are necessary for wrongful interference with a contractual relationship to occur: A valid, enforceable contract must exist between two parties A third party must know that this contract exists This third party must intentionally induce a party to the contract to breach the contract

Predatory Behavior actions undertaken w/ the intention of unlawfully driving competitors completely out of the market Permissible behavior or BONA FIDE COMPETITION is a defense to wrongful business interference Intentional Torts Against Property Trespass to land a person enters onto, above, or below the surface of anothers lan d without permission Defense against trespass Assist someone in danger A licensee Trespass to Personal Property a person wrongfully takes or harms the personal property of another Conversion the wrongful taking, using, or retaining possession of personal property that belongs to another (civil side of crimes related to theft) Disparagement of Property economically injurious falsehoods are made about anothers property rather than reputation Slander of Quality or Trade Libel publication of false information about anothers product, alleging that it is not what its seller claims Slander of Title when publication falsely denies or casts doubt on anothers legal ownership of prope rty Cyber Torts torts committed via Internet Defamation Online Immunity of Internet Service Providers Piercing the Veil of Anonymity (Fair Housing Council of San Fernando Valley v. Roommate.com, LLC )

*Intentional torts carry the possibility of punitive damages *Reasonable Person Standard how a reasonable person would have acted under the same circumstances *Moral pressure does not constitute false imprisonment

Chapter 7: Negligence and Strict Liability

Negligence the failure to exercise the degree of care Negligence per se (in or of itself) an act (or failure to act) in violations of a statutory requirement In a negligence action, the plaintiff must prove: Duty that the defendant owed a duty of care to the plaintiff Breach the defendant breached that duty Causation the defendants breach cause the plaintiffs injury Damages the plaintiff suffered a legally recognizable injury Duty of Care Defendant owes duty to protect plaintiff from foreseeable risks the defendant knew or should have known about Landowner are expected to exercise reasonable care to protect individuals coming onto their property from harm Duty to Warn Business Invitees of Risks (unless they are obvious risks) Duty of Professionals can sue for malpractice Foreseeability the consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event. Causation the act must have caused the plaintiffs injuries Causation in fact but for the wrongful acts, the injury would not have occurred Proximate cause (like an unbroken chain of events) when the connection between an act and an injury is strong enough to justify imposing liability Defenses to Negligence Assumption of Risk (courts do not apply the assumption of risk doctrine in emergency situations) Superseding Cause unforeseeable intervening event breaking the casual connection between a wrongful act and an injury to another Contributory and Comparative Negligence Contributory a plaintiff who was also negligent cannot recover anything from the defendant Comparative enables both the plaintiffs and the defendants negligence to be computed and the liability for damages distributed accordingly Pure Comparative Negligence allows the plaintiff to recover the damages even if their fault is greater than that of the defendant (if Jill is 20% at fault, she will recover 20% of her damages) Modified Comparative Negligence 50% rule - the plaintiff recovers nothing if he or she was 50% or more at fault. 51% rule the plaintiff recovers nothing if he or she was 51% or more at fault Res Ipsa Loquitur the facts speak for themselves Statute designed to prevent plaintiffs injury Danger Invites Rescue Doctrine extends the same protection to a person who is trying to rescue another from harm the original wrongdoer is liable for injuries to the individual attempting a rescue Good Samaritan Statutes someone who is aided voluntarily by another cannot turn around and sure the good Samaritan for negligence Dram Shop Acts a tavern owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated when served by the bartender Strict Liability liability without fault (Rylands v. Fletcher) It is NOT based on fault, foreseeability, standard of care, or causation, or NEGLIGENCE Product Liability Liability of manufacturers and sellers for harmful or defective products Wild Animals Persons who keep wild animals are strictly liable for injuries caused by the beast Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous Abnormally Dangerous Activities Activity involves serious potential harm High degree of risk that cannot be guarded against by the exercise of reasonable care Activity is not commonly performed in the community *Corporations can be held liable for its officers actions *NO DUTY TO RESCUE *misfeasance doing wrongful act *nonfeasance not doing something that a reasonable person would have done in the same situation *Palsgraf v. Long Island Railroad Co. the railroad had not been negligent toward her because injury to her was not foreseeable

Questions from the practice exam

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. Common law is called because: it was more or less uniform throughout England Administrative law is: public law The administrative agency is created by: legislative/executive branch of the government Legislation is a synonym for: statutory law Rules issued by a Chamber of Commerce is not a source of law Civil law is concerned with: disputes between person/citizen, and government Difference between original & appellate jurisdiction over the subject matter: whether the case is being heard for the 1st time Diversity of citizenship is a basis for: a federal court to have original jurisdiction Federal courts have exclusive jurisdiction in cases involving: patents and copyright/bankruptcy Which is not a method of alternative dispute resolution?: civil lawsuit Lawsuits are won when, during the trail, one side presents the court with a claim that the other side did not anticipate: not occur in our legal system The complaint and answer taken together are called: pleadings The discovery procedure consists of: deposition, interrogation, admissions A motion for judgment on the pleadings is not contained in a complaint Before the trail begins, standard can obtain: access to related documents in Tools possession When the filing of complaint and answer is done, it can be now: dismissed or settled at this point When a state law directly conflicts with a federal law: supremacy clause The 1st Amendment guarantees the freedom of: speech, religion, association (all of the above) Defamatory speech is protected by the Constitution: some of the time An administrative agency is created by: passage of the enabling of legislation by Congress When an agency utilizes notice and comment rulemaking they: put notice on the Federal Register If the administrative agency wishes to order a company to produce financial records : subpoena duces tecum A witness can be compelled to appear before an administrative judge: subpoena ad testificandum Deciding whether it is permissible for an AA to request/seize documents depends if the documents are: relevant To be entitled to have the matter reviewed by a court: the case is ripe for review Meeting of AA must be open to the public: Sunshine Act Notify the public of proposed rule on: the Federal Register Federal vs. State Law: federal law takes precedent The Constitution protects: unreasonable searches only Procedural due process: procedures used to making decisions (life, liberty, and property) Intentional tort, courts will not consider: the suffering of the victim A person defending himself against battery: whatever force reasonably good The infliction of emotional distress: extreme and outrageous conduct Public figures have: a greater burden

TRUE/FALSE
35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. The federal government derives its power to govern from the federal constitution . TRUE Criminal law is concerned with wrongs committed against the public as a whole : TRUE Federal court jurisdiction diversity of citizenship with more than $75,000 : TRUE Long arm statute is a state law that permits courts to obtain jurisdiction over non-resident defendants: TRUE Summary judgment will be granted when there are no genuine issues of fact : TRUE Discover involves the process of gathering evidence concerning the case: TRUE A particular court may have jurisdiction in a certain case but no venue : TRUE Congress issues legislative rules when it creates an administrative agency : TRUE The US Constitution provides the legal basis for administrative agencies : TRUE Notice and comment rulemaking is most common in administrative agencies: TRUE Subpeona duces tecum is an order to an individual to hand over certain records/books : TRUE The powers of administrative agency are generally delegated by Congress: FALSE Courts do not depart from precedents: FALSE An order to a specific person to do or to refrain from doing a particular act is an order of rescission: FALSE US District Courts have appellate jurisdiction in federal matters: FALSE Venue is concerned with whether a court has authority over specific subject matter: FALSE Federal government retains all powers not specifically delegated to the states: FALSE Terms procedural due process and substantive due process are used interchangeably: FALSE Administrative rules are not binding as the laws that Congress makes: FALSE

All of the Above/ None of the Above

54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. Doctrine of stare decisis: none of the above Which is not true of law? : Law includes rules of conduct Highest ranking (superior) law: provision A court of equity: all of the above State trial courts that exercise general jurisdiction over the subject matter.: any of the above (district/circuit/etc) The US Supreme Court may review a lower court decision that: all of the above An arbitration clause: all of the above When a dispute is to be resolved by arbitration : all of the above The functions of most administrative agency include: all of the above (rulemaking, adjustication, enforcing) Libel consists of speaker defamatory statements: all of the above Slander per se: all of the above Before the trail begins, standard can obtain: access to related documents in Tools possession Mack summoned Nancy but Nancy choose to ignore: judge will favor Mack If Nancy files a counterclaim: Mack will also have to file a response Fireworks over charged: apped to the commission of the agency Violent video games/ this ordinance would be: unconstitutional, restriction of speech Hot dog stand vendors: constitutional under equal protection clause

Scenario Type Questions

65. 66. 67. 68. 69. 70.