Vous êtes sur la page 1sur 15

Law Boot Camp Notes

Outlines
http://lawschool.westlaw.com/shared/marketinfodisplay.asp?code=MI&id=352
outlinedepot.com
Restatements
http://www.law.cornell.edu/wex/contract
http://www.lexinter.net/LOTWVers4/restatement_(second)_of_contracts.htm
Resources
West
Lexis-nexis

Material
Q&A series
Examples & Explanations

Introduction
1. Grades
a. Law review dean list; organization top 10%. Publish a magazine
1. 3 ways to get in
i. 1
st
semester Grades
ii. Writing tryout
iii. Combination of both
b. Applying for summer positions
2. Academics
a. Workload
b. hiding ball mislead Socratic method
c. Look at what kind of exam and the professor type (what to look for)
1. Go office hours
3. Organization
a. Law journal
b. Moot court
4. Contracts
a. Past consideration (after the fact) - unenforceable
b. Before the fact enforceable
5. Reasonableness and the reasonable person standard
a. Objective standard we are not going to adjust reasonableness from person to person. It is a
standard
b. Fictional
c. Adequate standard
d. Assumes certain basic intellectual ability and attention to what's going on




6. *Framework categories. Thought process
a. State vs federal
1. Originates from constitution (1789). Starting point how we organize our culture. It sets
forth how we frame law. Division between fed and state. Articles of confederation
help us understand constitution (1781-1789). Problem the colonist afraid of
centralized power, so 13 had its own country. Two parallel situations fed and state.
b. 3 branches of government. Separation of powers.
1. Executive president
i. today-focused
2. Judicial supreme court
i. yesterday-focused = retrospective
ii. most of what I will be studying
3. Legislative congress
i. tomorrow-focused = prospective
c. Statutory vs. Common Law
1. Statutory laws --> passed by a legislature and are typically found in a code (such as
the California criminal code). Codified, neat and orderly.
2. Common law is made up by judges ('judge-made law"). Works on the precedent based
law. Continue to refine. Common law --> unlike statutory, it is very disorganized and
oftentimes close to contradictory; it's a big mess
Judicial Branch
d. Common Law judicial system
1. Holding vs. dicta part of a judicial opinion, but not labeled as such
i. Holding something we put weight on as precedent value. It explains why
this verdict or decision came out this way. Important part. Holding --> the
decision and the actual reasons for it
ii. Dicta frowned upon. Is other items that are discussed but not part of the
way get in the actual decision. Dicta --> a judge rambling about other stuff
(which they shouldn't do but they do)
e. Law vs. Equity two parallel court systems
1. Equitable remedy - special kind of remedy. Fairness between the parties. Remedy at
law was not achieved, then go to equity court. Something you cant get through law
court.
i. Injunction derives from equity.
2. Legal remedy
f. Civil vs. criminal proceedings
1. Civil had a contract and doesnt go through. Brought by private individual plaintiffs
2. Criminal public law. Something illegal for everyone. Handled by state prosecutor.






g. Trial vs. appeal
1. Trial is where all the evidence is presented
i. Civil trial: plaintiff (the injured party) vs. defendant
ii. Criminal trial: prosecutor (a lawyer paid by the state to represent the public)
vs. defendant (who is the person charged with a crime)
2. Appeal is after trial has already occurred and the losing party is asking for review by a
higher court. (But usually that review is only about the law involved not the evidence
itself)
h. Law/legal issues vs. facts/factual issues (factual inferences vs. legal inferences)
1. Law characterizes facts
2. Cant automatically make a legal inference just based of off facts
3. Evidence vs. what that evidence can show
i. Binding vs. persuasive authority
1. Binding: actual law that a given court has to follow. Binding authority is IN the relevant
jurisdiction and (usually) comes from the same level or a higher level of authority
i. Judge is bound by supreme court
ii. Not binding supreme to trial judge
2. Persuasive: is useful analysis but the given court can accept or reject that analysis
i. "Case of first impression": never ruled in that situation. So can refer to another
jurisdiction that has handled this case before.
ii. Nevada supreme court is persuasive with California trial court
iii. Persuasive: courts decisions from other jurisdictions; can also be influential
books by lawyers or judges, law review articles, dictionaries, encyclopedias,etc
j. Objective vs. subjective standards
1. Objective: doesn't take into account individual perspective. (one-size-fits-all rule)
i. Speed limit 55 and youre going 57 you are breaking it.
2. Subjective: it digs into the brain and how someone was thinking. Usually kids and
adults are usually objective standards









*What is a restatement?* - outline definition






CONTRACT LAW
Intro
contract is an agreement for the breach of which the law provides a remedy
Some way to make a promise enforceable
A promise is a commitment to do something at a later time
How do you make a promise stick?
By providing an incentive to the other side for them to behave well, i.e., keep their promise
reputational benefits
Once we make promises stick , we can do non-simultaneous transactions which opens up a huge
number of new deal possibilities
If you dont have a way to trust another the only way would be force
If there's a third party with even more power and leverage than either of the contracting parties,
then that third party becomes a new way to provide force.
Contract is typically an exchange of: (i) something now for a promise (ii) a promise for a promise
Ways to form a contract
Express contract using words
Implied contract behavior implied an agreement
Elements of a contract
Offer communication of willingness to enter into an agreement and that the other side
acceptance will conclude the bargain
o 24. OFFER DEFINED
An offer is 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. (the other person is called the "offeree")
o Advertising --> not an offer, but simply "an invitation to deal"
Acceptance
o Counter-offer acts a rejection and a new offer
"mirror image rule" - the terms of the acceptance have to be identical to the terms
of the offer; otherwise, it's a counter-offer (rejection and new offer)
There has to be a live offer if it was rejected be aware when its live and killed
Two killed then no offer and one person has to open up a new offer
o reasonable period of time an offer can expire
o Revocation of an offer - kills the offer by offerror
If it was a offeree then its a rejection
option contract keeps an offer open for a specified period of time
Irrevocability of an offer through:
Putting a deposit to hold it open
Foreseeable reliance make an offer and then the other says they will
get back to see if they can get a ride and they pay $50 for the ride. Now
the offeror is in a place of liability and now cannot revoke the offer.
o
Foresee - predict at the time that something may happen later (it
doesn't have to be PROBABLE, it just has to be something that
may happen and that people would perceive in advance that this
thing could happen)
o Reliance someone relied on an offer being there or following
through on their promise. counting on someone to follow
through on their promises or statements
relying to one's detriment ("detrimental reliance")
"Mutual agreement" or "meeting of the minds"
o the classic agreement that is not enforceable would be one for an illegal act
Consideration quid pro quo - the thing that the parties are bargaining for; its the stuff that they
want to exchange,' it is what they get out of the deal
o "Whats in it for me?" from each side prospective. This is the consideration
o "Past consideration" = that one party has already done something and then the other
party is trying to compensate them for that past deed. It does NOT work
o Promissory estoppel (we are stopping you from taking back your promise because
someone else relied upon your word. Has to be foreseeable. Standing behind your
promise and will only go so far. It is a backup theory to recover the small amount). The
express promise is not enforceable on standard offer/acceptance/consideration grounds,
but it BECOMES enforceable because someone foreseeably relied on the promise to
their detriment. Back up theory. No contract formed
estoppel - if your behavior or statement causes someone else to change their
behavior and thereby make themselves vulnerable in some way, the law is not
going to allow to "take it back"
Making promises enforceable
o CONTRACT FORMATION:
Express
Offer
Acceptance
Consideration
o if yes, then express contract formed
o if no, then we might use a back-up theory, namely, promissory
estoppel
Which requires: the promise is not enforceable under
contract theory, but there has been foreseeable,
detrimental reliance on the promise. Detrimental reliance
Remedy: generally speaking, an aggrieved party
cannot recover more than the full benefit of the
intended bargain
o CONTRACT INTERPRETATION
Once you've got a contract formed, what are the terms of the contract?
Parole evidence rule - says that discussions before or during the
contract formation that include terms that don't get into the final writing of
the agreement are not part of the agreement. Before and during contract
formation
Pre-existing duty rule - says that a modification, in order to be valid
(enforceable), must be supported by additional consideration. After
contract signed. Unless supported by additional consideration.


Terms part of the deal or not
Usage of trade or trade usage or industry custom meaning of the actual item is ruled by
how it is defined within the industry
o No meeting of the minds if the meaning of the item is not the same, but they think it is the
same. Example: sound system, music stereo.
Course of dealing - a previous deal shows what the parties actually meant by the ambiguous
term. Usage of trade pertains to the whole industry but course of dealing pertains to these
particular parties and is therefore even more helpful.
Course of performing 52 weeks of same item and then on the 9
th
week bring something
different. Course of dealing pertains to PREVIOUS deals but course of performance pertains to
THIS deal and is therefore even more helpful.



































LEGAL WRITING
IRAC Issue, Rule, Application/Analysis, Conclusion
ILFAC
o Issue (1-3 words identify) - the legal determination that you are going address. It's the
problem you're going to solve (but don't solve in the issue statement).
Good issue statement for tonight's work: Offer, Acceptance, Consideration,
Rejection, Counter-offer, Revocation, Parole Evidence, Modification, Pre-Existing
Duty
o Law Library consists of 2-5 parts. The law library must include every rule of law
and only those rules of law that you are going to use to fully dispose of the issue. if
your law library is really long, you're probably discussing more than one issue
1) Statement of general rule definition
2) Definitions of any terms of art that appear in the general rule
"term of art" is any word or phrase that lawyer uses differently from a
layperson
3) Explanations of and elaborations on how the rule plays out when put into
action. Not obvious to the reader.
4) Exceptions to and limitations on the general rule
5) Consequences of the rule when applied (if those consequences are not
obvious)
o Fact File 2-3 sentences. A verbatim transcription of all the facts and only those facts
that you will need and use to dispose fully of the issue. But ONLY those facts that are
relevant to this issue. Oftentimes, this paragraph may only be one or two sentences long.
Read from the offense to the defense. You always want to know the other side's
arguments as well as they do.
o Argument/Conclusion - 4 sentences. Take the major premises (i.e., principles) from our
Law Library and apply those to our minor premises (i.e., instances or occurrences) from
our Fact File to reach a conclusion about the issue.
If A then B. If conversation was had before the deal was consummated, that
conversation is subject to parole evidence rule. Conversation was before the
deal; therefore it is subject to the parole evidence rule.
Same structure as LSAT. Premise premise conclusion
In this paragraph, use all of your premise indicator and conclusion indicator
words
premise: because, since
conclusion: thus, therefore, accordingly, hence

Hallmarks of Good Legal Writing
Organization
Prioritize emphasis on big stuff.
Easy to follow
Boring
Predictable
No surprises, twists, turns, drama
UNIFORM STRUCTURE
BRICK-BY-BORING-BRICK
SELF-REVEALING STRUCTURE

REPETITIVE STRUCTURE
* professional
* considerate of the reader

THE EASIER TO FOLLOW, THE EASIER TO GRADE - translate into points





Mechanics

Law Library: introduce this paragraph with a citation or structure that says 'here comes my law"
o
Citation to the specific source of the following law. Law Library: should be universally
phrased, i.e., do not ever use specific names, dates, events, etc., from the facts in the LL
"FRCP Rule 56 provides that ....."
"Under the 14th Amendment to the U.S. Constitution, ...."
"According to the court in International Shoe,...."
o
Give the procedural context for how this law comes up:
"In order to prevail on a theory of battery, the plaintiff must show...."
"In order to prove the defendant guilty of murder, the prosecutor must show...."
o
Citation to the general source of the rule
"At common law, battery was defined as ....."
"Under the FRCP, ...."
o
Phrase the rule as a "rule" or a "definition"
"Battery is defined as...."
"The rule for false imprisonment is ...."

Fact File - specific only to this case and doesn't include any law or argumentation. Delete irrelevant
facts that happen to be intermingled with the relevant facts.
o
"Here, ...."
o "The facts indicate that....."
o "According to the facts in the present case,...."
Argument/Conclusion: characterized by words of argumentation
o
Clearly indicate your logical structure by using classic premise and conclusion indicators,
hopefully an indicator in almost every sentence
o
Premise: because, since, assuming that, provided that, given that
o
Conclusion: Thus, therefore
Second conclusion in a complex argument accordingly to introduce the second
conclusion.
example:
prem 1
prem 2
"Thus" - subsidiary conclusion
"Accordingly" - main conclusion
Do NOT use "so". Ultimately not so much

Indicators of contrast and congruity any of the 3 parts


o
CONTRAST indicators: indicate two facts that seem to go in opposite directions or two laws
that seems to limit each other in some way. Can use between facts or laws
But, however, despite, in spite of, although, even though,
o
Congruity indicator: two facts or two laws that seem to go in the same direction or reinforce
each other or build on each other

And (weak), furthermore, moreover, also, additionally, in addition to















TORTS
Public concerns: CRIME
Gov. legitimacy, right thing for society, allow tribe to survive, resolve in way that causes people to feel
safe or not
Private concerns: TORT = wrong
Particular to the victim, compensation.
wrongdoer = tortfeasor

Types of Torts (arranged according to mental state of what the wrongdoer was thinking at the time)
Intentional Tort we care about intent
o Battery the harmful or offensive touching of the person of another. Physical fight. Touch
other person body. Elements: (i) harmful or offensive, (ii) touching, (iii) of the person, (iv) of
another, [(v) intentional, (vi) causal relationship]
"the person" = the body instrumentality
"person" includes things that are being worn and things that are being carried
by the victim
o Assault - "placing the victim in apprehension an immediate harmful or offensive contact"
Notice that the injury in assault happens in the victim's mind. Holding a stick about to
hit someone or a gun. Even if it doesnt result in hitting a person.
Fear is not necessary. Even if not afraid still in apprehension or contacted
The mindset has to be seen before. If goes around without seeing then not
battery and not assault
Apprehension can be negated by for instance bullet proof glass or video
chatting someone else
Immediate is in close proximity.
o False Imprisonment - "unlawfully confining the victim to a bounded area with no reasonable
means of escape"
physical limitations do get taken into account by the reasonable person standard
victim must be aware of the confinement (or they are child or they harmed by the
false imprisonment even though not aware)
there doesn't have to be a physical restraint; a threat can be a sufficient
Negligence Accidental. Careless. We care about intent.
o (a) duty (to adhere to a standard of care), (b) behavior fell below that standard of care
(breach of duty), (c) breach actually caused, (d) breach proximately caused, (e) injury to the
plaintiff (i.e., the victim).
Duty- is there a duty, and if so, to whom is that duty owed? you owe a duty to
foreseeable plaintiffs
"Zone of danger"
Reasonable person standard behave with kind of care that a reasonable
person would use it that circumstance
Breach of duty negligence per se statutory standard = reasonable person
standard
Actual cause
Proximate cause - actually a limitation on the scope of liability. If the chain of
causation becomes too attenuated, then we will snip off liability from that point on
If you get into accident and something flies far away and injuries. This will cut
of the liability.
Unforeseeable chain of events = defeats liability
Injury
Strict liability still didnt follow rules, so hold accountable even though didnt do anything wrong.
We do not care whats going on through your head.

Defense - Says, even if I did that thing, I'm still not liable, and here's why....
o Contributory negligence - the victim himself did not behave as a reasonable person in taking care
of himself. If the victim is contributory negligent, he is BARRED from recovering from the defendant.
It's a complete defense
o Comparative negligence splitting the responsibility between victim and tortfeasor (defendant


































Criminal Law
-Deterrence theory- stopping from something that happens in the future
-Recidivism so we do not have repeating crimes by a person who has in the past. Recidivist
-Retribution theory of punishment we want to punish a certain person so far. Parents of victim mind.
-Incapacitation need to get them out of society because they are dangerous. Not susceptible to
deterrence

Elements of a Crime
a) Actus Reus guilty act. The thing the person did. Most visible thing.
b) Mens Rea Most important. Guilty mind. State of mind the person is in when they did the crime.
o So central because it gives us a mathematical calculation of a reoccurrence of an event.
Car homeless example compared to mass killing.
o the key element is also completely invisible
c) Causation actual (scientific cause) or proximate cause.
d) Concurrence actus reus and mens rea need to be happening at the same time.
e) Result (not always) a particular thing has to happen
f) Attendant circumstances (not always)
g) Social harm (built into actus reus or result) all 3 built into killing.

Tiers of Mens Rea (from common law)
Specific intent - in a way, the higher level of mens rea which we call "specific intent" is there to
protect innocent people from being prosecuted criminally. That protection is NOT necessary for
crimes when the behavior obviously provides immediate feedback that tells the perpetrator that what
he's doing is wrong. Not only doing activity but have the intent on doing this illegal activity.
o Example larceny
Malice - there are only a couple of major common law crimes that use malice as the mens rea
o MURDER and ARSON:
in murder: "malice" gets a very specific definition that is specific to murder
o hybrid because it can happen accidentally and intentionally
General intent
o Intent to be doing the action. Voluntarily participating in activity.
o Example: rape
Strict liability - just means we don't care what you were thinking. in other words, strict liability crimes
essentially have no mens rea element
o (tends to only be used for small, regulatory matters like speed limits)















Types of Crimes
Murder - (i) killing of (ii) another human being (iii) with malice aforethought
o The mens rea at common law as "malice aforethought. The four alternative ways to satisfy
the "malice aforethought" element:
a) Intent to kill
b) Intent to inflict grievous bodily harm
c) Reckless indifference to the value of human life ("depraved heart")
d) Felony murder rule (FMR)
If someone dies during the commission of an inherently dangerous felony,
then the mens rea for the commission of the felony (the non-murder felony)
can be used to satisfy the "malice aforethought" element for murder
o Rape example. In the process and while during the process the
victim dies. Charging that person with rape and murder what was not
their intent. Use mens rea for rape on murder mens rea
o "Predicate felony" = the other felony that you're then using to support
a murder prosecution. If you're doing felony murder rule analysis,
you'll have to first show that the predicate felony was committed.
First the other first like robbery then stick the murder (FMR)
Cannot be simply battery- almost all murders involve battery.
Inherently dangerous that may support FMR
o Burglary, arson, rape, robbery, kidnapping
Inchoate incomplete. Harder to tell so higher level of mens rea require specific intent
o Attempt substantial step toward the commission of the target crime
o Solicitation - asking someone else to commit a crime.
o Conspiracy - agreement between two or more people to commit target crime.
Overt act: really were meaning to do the intended plan
Larceny theft crime
Robbery - is like a combination of the larceny (taking someone's property) and assault (doing it by
means of a threat or potential battery)
Burglary - (a) breaking, (b) entering into, (c) the dwelling house, (d) of another, (e) at night, (f) with the
intent to commit, (g) a felony therein. Intent to commit actus reus, but then there's also an intent to do
some other crime (and that other crime has to be a felony)
o Breaking doesnt mean to break the door down. Its just widening and opening a door. Or
twisting the knob.
o Entering into a pole through a window is still a door
o Dwelling house structure using to sleep in
o Night questionable
o With the intent to commit idea of. If person forms intent after breaking in then not burglary
o Felony therein
o Laws being modernized - common law crime definitions appeared in the common law, in
other words in court opinions. Modernly: crime definitions are all passed by statute, in other
words passed by legislatures and available in the state penal code




Civil Procedure
Substance or substantive law VS. Process or procedure or procedural law (rules)
Rules of civil procedure comes from FRCP (Federal Rules of Civil Procedure).
Rules of evidence come from FRE (Federal Rules of Evidence)
Jurisdiction
Personal jurisdiction - should this court have power over this defendant?
o Plaintiff files the case, and in so doing they chose the court and agreed to let that court over
themselves. Always pertains to the defendant not the plaintiff.
o Traditional bases power over defendant
The defendant lives in the given location
the defendant is served while he or she is in the given location
o Modernly - we still recognize the above, but we also have a more flexible modern standards.
Progeny is when there is a precedent and its afters
case need to know International Shoe vs. Washington. Primarily comes from here
U.S. Supreme Court created minimum contacts test.
Helps to determine when it's appropriate for an out-of-state defendant to be
subject to the courts and laws of the forum state.
o Continuous and systematic presence
o Purposeful availment - (of the markets, customers, legal protections
of the forum state)
o State's interest in providing a forum for the protection of its own
citizens.
o Fairness where to get tried depends how much business you do
o Relatedness - the legal issue being fought over should be related to
the contact with the forum state
Subject matter jurisdiction each court has certain kinds of cases that it is empowered to handle,
and other kinds of cases over which it has no authority.
o Federal subject matter jurisdiction - can this particular type of case be handled in a federal
court or state?
o Forum-shopping looking for a court that favors our point of view
To get into federal court:
1. Federal question jurisdiction - if the right you're suing on is a federally
created right (i.e., it gives rise to a "federal question"), then jurisdiction in a
federal court is proper
2. If you're dealing with a state law based right (and therefore can't get
federal question jurisdiction), then you may be able to get into fed. court on
the basis of "diversity jurisdiction".
o Diversity jurisdiction - eliminate the "home court advantage". By
providing a neutral forum that is not controlled by any state
o Standards to get into #2
A: the amount in controversy is over $75k
B: complete diversity - diversity means that no plaintiff
shares a citizenship with any defendant. (plaintiff is a citizen
of CA and the defendant is a citizen of WY = complete
diversity. 1000 Ca plaintiffs + 1 WY plaintiff VS. 1000 NY
defendants and 1 WY defendant= NO diversity)









Timeline
o Initiate with "complaint"
o The defendant responds by filing an "answer"
o "Service of process" physically deliver complaint to the defendant.
o These two docs (complaint and the answer) are collectively called the "pleadings"
o "Notice pleading" put defendant on the notice of the filings. Enough to notify the basic of
complaint or response for that complaint
o Discovery - period of time for finding evidence and requesting information from the other side
discovery tools
deposition
subpoena
o Interrogatories
o Pre-trial hearing - orchestrated, almost like a script for a theatrical performance
director: judge
props: physical evidence
actors: witnesses
audience: jury
plaintiff puts their on their part of the "show" -- they offer evidence to support their
claim(s)
act 1 - plaintiff puts on their part of the show
intermission
motion for summary judgment and directed verdict or "judgment as a matter of law"
even if everything the plaintiff said is true, we should still win here's why
act 2 - defendant puts on their part of the show
at the close of the second act, the "show" is over
if no judgment as a matter of law, then the question goes to the jury
verdict
Motion judgment notwithstanding the verdict
final judgment
Theres time for appeal - goes from trial court to the appellate
FRCP & FRE (procedure) two process of the law. How we fight.
o crim and torts and contracts and property (substance) = what we fight over
o procedure as distinguished from substantive law



All around Notes

Element-based VS. Factor-based

In an element-based claim, each element must be met or the claim fails


o
Element-based: checklist rule

Factor-based analysis, all the factors are combined to create a sort of total and then that total is
compared to a threshold; if the total exceeds the threshold, then the result1; if it fails to exceed the
threshold, then result2
o
Factor-based: stew rule

TO DO
Download outlines
Commit to school and read books and material
Round up essay prompt (Q&A series)