LAW - Lecture notes 1-15 PDF

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This is a summary of the entire law 1101 course....

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CHAPTER 1 Law: A body of enforceable rules governing relationships among individuals and between individuals and their society Liability: The state of being legally responsible (liable) for something such as a debt or obligation Primary source of law: A document that establishes the law on a particular issue, such as a constitution, a statute, an administrative rule, or a court decision Secondary source of law: A publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review Constitutional law: The body of law derived from the U.S. constitution and the constitutions of the various states Statutory Law: The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law) Citation: A reference to a publication in which a legal authority- such as a statute or a court decisionor other source can be found Ordinance: A regulation enacted by a city or county legislative body that becomes part of that state’s statutory law Uniform law: A model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute Administrative law: The body of law created by administrative agencies in order to carry out their duties and responsibilities Enabling Legislation: A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created Adjudicate: To render a judicial decision. Adjudication is the trial-like proceeding in which an administrative law judge hears and resolves disputes involving an administrative agency’s regulations Administrative process: The procedure used by administrative agencies in administering the law Rulemaking: The process by which an administrative agency formally adopts new regulation or amends an old one Legislative rule: An administrative agency rule that carries the same weight as a congressionally enacted statute Interpretive rule: A nonbinding rule or policy statement issued by an administrative agency that explains how it interprets and intends to apply the statute it enforces Administrative law judge (ALJ): One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of facts

Case law: The rules of law announced in court decisions. Case law interprets statutes, regulations, constitutional provisions, and other case law Common law: The body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature Precedent: A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts Stare decisis: A common law doctrine under which judges are obligated to follow the precedents establishes in prior decisions Binding Decisis: Any source of law that a court must follow when deciding a case Persuasive Authority: Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision Remedy: The relief given to an innocent party to enforce a right or compensate for the violation of a right Plaintiff: One who initiates a lawsuit Defendant: One against whom a lawsuit is brought or the accused person in a criminal proceeding Equitable Principles and Maxims: General propositions or principles of law that have to do with fairness (equity) Jurisprudence: The science or philosophy of law Natural law: The oldest school of legal thought, based on the belief that the legal system should reflect universal (“higher”) moral and ethical principles that are inherent in human nature Legal positivism: A school of legal thoughts centered on the assumption that there is no law higher than the laws created by a national government. Laws must be obeyed, even if they are unjust, to prevent anarchy Historical school: A school of legal though that looks to the past to determine what the principles of contemporary law should be Legal realism: A school of legal thought that holds that the law is only one actor to be considered when deciding cases and that social and economic circumstances should also be taken into account Substantive law: Law that defines, describes, regulates, and creates legal rights and obligations Procedural law: Law that establishes the methods of enforcing the rights established by substantive law Cyber law: An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the internet Civil law: The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters

Civil law system: A system of law derived from Roman law that is based on codified laws (rather than on case precedents) Criminal law: The branch of law that defines and punishes wrongful actions committed against the public National law: Law that pertains to a particular nation (as opposed to international law) International law: The law that governs relations among nations Majority opinion: A court opinion that represents the views of the majority (more than half) of the judges or justices deciding the case Concurring opinion: A court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority’s opinion Dissenting opinion: A court opinion that presents the views of one or more judges or justices who disagree with the majority’s decision Plurality opinion: A court opinion that is joined by the largest number of the judges or justices hearing the case, but less than half of the total number Per curiam opinion: A court opinion that does not indicate which judge or justices authored the opinion CHAPTER 3 Judicial review: The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch Jurisdiction: The authority of a court to hear and decide a specific case Long arm statute: A state statute that permits a state to exercise jurisdiction over nonresident defendants Probate court: A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person’s estate Bankruptcy court: A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law Federal question: A question that pertains to the U.S. Constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case Diversity of citizenship: A basis for federal court jurisdiction over a lawsuit between citizens of different states or a lawsuit involving a U.S. citizen and a citizen of a different country Concurrent jurisdiction: Jurisdiction that exists when two different courts have the power to hear a case

Exclusive jurisdiction: Jurisdiction that exists when a case can be heard only in a particular court or type of court Venue: The geographic district in which a legal action is tried and from which the jury is selected Standing to sue: The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit Justiciable controversy: A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case Small claims court: A special court in which parties can litigate small claims without an attorney Question of fact: In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point Question of law: In a lawsuit, an issue involving the application or interpretation of a law Writ of Certiorari: A writ from a higher court asking a lower court for the record of a case Rule of four: A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ Litigation: The process of resolving a dispute through the court system Pleadings: Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case Complaint: The pleading made by a plaintiff alleging wrongdoing on the part of the defendant. When filed with a court, the complaint initiates a lawsuit Service of process: The delivery of the complaint and summons to a defendant Summons: A document informing a defendant that a legal action has been commenced against her or hum and that the defendant must appear in court on a certain date to answer the plaintiff’s complaint Default judgement: A judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim Answer: Procedurally, a defendant’s response to the plaintiff’s complaint Counterclaim: A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff Reply: Procedurally, a plaintiff’s response to a defendant’s answer Motion to dismiss: A pleading in which a defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff’s claim to state a cause of action has no basis in law Motion for judgement on the pleading: A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute

Motion for summary judgement: A motion requesting the court to enter a judgement without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute Discovery: A method by which the opposing parties obtain information from each other to prepare for trial Deposition: The testimony of a party to a lawsuit or a witness taken under oath before a trial Interrogatories: A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party’s attorney, and then signed under oath E-Evidence: A type of evidence that consists of computer generated or electronically recorded information Metadata: data that are automatically recorded by electronic devices and provide information about who created a file and when, and who accessed, modified, or transmitted the file on their hard drives. Can be describes as data about data Voir Dire: An important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors Motion for a directed verdict: A motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support her or his claim Award: The monetary compensation given to a party at the end of a trial or other proceeding Motion for judgement n.o.v.: A motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury’s verdict against him or her was unreasonable and erroneous Motion for new trial: A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice Brief: A written summary or statement prepared by one side in a lawsuit to explain its case to the judge Docket: The list of cases entered on a court’s calendar and thus scheduled to be heard by the court Alternative dispute resolution (ADR): The resolution of disputes in ways other than those involved in the traditional judicial process, such as negotiation, medication, and arbitration Negotiation: A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them Mediation: A method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement

Arbitration: The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision Arbitrary Clause: A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court Summary Jury Trial (SJT): A method of settling disputes by holding a trial in which the jury’s verdict is not binding but instead guides the parties toward reaching an agreement during the mandatory negotiations that immediately follow Online Disputes Resolution (ODR): The resolution of disputes with the assistance of organizations that offer dispute resolution services via the internet CHAPTER 4 Damages: A monetary award sought as a remedy for a breach of contract or a tortious action Compensatory damages: A monetary award equivalent to the actual value of injuries or damages sustained by the aggrieved party Special damages: In a tort case, an amount awarded to compensate the plaintiff for quantifiable monetary losses, such as medical expenses, property damages, and lost wages and benefits (now and future) General damages: In a tort case, an amount awarded to compensate individuals for the nonmonetary aspects of the harm suffered, such as pain and suffering. Not available to companies Punitive damages: Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future Defense: A reason offered by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what she or he seeks Intentional tort: A wrongful act knowingly committed False imprisonment: Intentional confinement or restraint of another person’s movement without justification Tortfeasor: One who commits a tort Assault: Any word or action intended to make another person fearful or immediate physical harm- a reasonably believable threat Battery: Physical contact with another that is unexcused, harmful or offensive, and intentionally performed Actionable: Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action Defamation: Anything published or publicly spoken that causes injury to another’s good name, reputation, or character

Libel: Defamation in writing or another permanent form (such as a digital recording) Slander: Defamation in oral form Privilege: A special right, advantage, or immunity that enables a person or a class of persons to avoid liability for defamation Actual malice: The deliberate intent to cause harm that exists when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth. Actual malice is required to establish defamation against public figures Appropriation: In a tort law, the use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user Fraudulent misrepresentation: Any misrepresentation, either by misstatement or by omission of material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment Puffery: A salesperson’s exaggerated claims concerning the quality of property offered for sale. Such claims involve opinions rather than facts and are not legally binding promises or warranties Business tort: Wrongful interference with another’s business rights and relationships Trespass to land: Entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization Trespass to personal property: Wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owner’s possession of personal property Conversion: Wrongfully taking or retaining possession of an individual’s personal property and placing it in the service of another Disparagement of property: An economically injurious falsehood about another’s product or property Slander of quality (Trade Libel): The publication of false information about another’s product, alleging that it is not what its seller claims Slander of title: The publication of a statement that denies or casts doubt on another’s legal ownership of property, causing financial loss to that property’s owner Negligence: The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances Duty of care: The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence Reasonable person standard: The standard of behavior expected of a hypothetical “reasonable person.” It is the standard against which negligence is measured and that must be observed to avoid liability for negligence

Business invitee: A person such as a customer or a client, who is invited onto business premises by the owner of those premises for business purposes Malpractice: Professional misconduct or the lack of the requisite degree of skill as a professional. Negligence on the part of a professional, such as a physician, is commonly referred to as malpractice Causation in fact: An act or omission without which an event would not have occurred Proximate cause: Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability Assumption of risk: A defense to negligence that bars a plaintiff from recovering for injuries or damage suffered as a result of risks he or she knew of and voluntarily assumed Contributory negligence: A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff’s own fault Comparative negligence: A rule in tort law, used in the majority of states, that reduces the plaintiff’s recovery in proportion to the plaintiff’s degree of fault, rather than barring recovery and completely Res Ipsa Loquitur: A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means “the facts speak for themselves” Negligence Per Se: An action or failure to act in violation of a statutory requirement Good Samaritan statute: A state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless they act recklessly and cause further harm Dram shop act: A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication Strict liability: Liability regardless of fault, which is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective and unreasonably dangerous goods CHAPTER 5 Product Liability: The legal liability of manufacturers, sellers and lessors off goods for injuries or damage caused by the goods to consumers, users and bystanders. Privity of Contract: The relationship that exists between the promisor and the promise of a contract. Privity is the reason that normally only the parties to a contract can enforce that contract Unreasonable Dangerous Product: (1) The product is dangerous beyond the expectation of the ordinary consumer. (2) A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it. Market-share Liability: A theory that states a court can hold each manufacturer responsible for a percentage of the plaintiff’s damages that is equal to the percentage of its market share

Tolled: Suspended Statutes of Repose: Passed by many states that place outer time limits on product liability

3 Types of Equitable Remedies 1. Specific performance is a...