Comm Law - Final Exam

Opinion in Defamation

A defendant's relationship to the plaintiff and the context of the statement are considered - how well did you know the person? how likely is it for you to know the information you are giving in this statement? does your relationship lend credibility to your statement

Supremacy Clause

"The constitution and laws of the US shall be the supreme law of the land and that judges of every state shall be bound"

Alternative Employment Contracts

"just cause" termination - requires a reason to be given; terms - length of the contract; professional incompetence - can only be fired due to incompetence that must be proven; agreed upon conditions upon termination - severance, 10 days notice, etc.

Res Ipsa Loquitur

"the thing speaks for itself" - states that negligence occurred if an event causing the damage/injury to the plaintiff is one that ordinarily cannot occur without the presence of negligence (ex. surgeon leaving a sponge in the stomach of someone they operated on)

Criminal Causes of Action

A body of rules that define the conduct that is prohibited by the government; this conduct threatens and harms the public safety and welfare. Statutory and created by teh state - purpose to deter criminal behavior and punish criminal behavior

Injunction

A court order to do something or refrain from doing something (ex - clean up your yard, turn loud music down at night, etc.). There is no money/fines involved in an injunction.

Illusory Promise

the offeror leaves the door open or does not bind him/herself to the deal - promises to deliver a good/service IF certain conditions are met (not certain enough to be valid contracts w/ proper consideration)

Expressive Consent

the owner of the land gave consent either written or orally

Money Judgements at Law

the physical documetns produced by teh court awarding a monetary amount to the victim (civil victim remedies are damages)

Venue

the proper court for a trial to begin, based on the nature of the case - in criminal cases, the venue is always where the crime occurred

Cause of Action

the remedy you are owed by the court - each cause of action is supported by a different law, procedure or relief

Roe v. Wade (1973)

Abortion rights fall within the privacy implied in the 14th amendment

Sale of Goods over $500

According to the UCC, these agreements must be made in writing

Civil Enforcement Causes of Action

Administrative law - clean water act, fair trading regulations

Civil Enforcement Style

Agency v. Perpetrator - ex.) SEC v. Madaff

Pleadings

All cases must begin with pleadings by both sides

Electronic Discovery

All of the normal rules of discovery apply for electronic evidence

Capacity

All people have the capacity to enter a contract except children and those with mental disability

Testamentary Estate

All real or personal property that you die with

Attorney's Fees

American rule states that you pay for your lawyer if you win - attorney's fees are the only exception to this rule. THey are only awarded if these fees were statutory, listed w/in a contract, or a contingency. Equitable damages will treat attorney's fees differently.

Duty

An act or course of action that is required by social custom (typically not written down). For example, duty to exercise reasonable care is an unwritten expectation that we expect all people to act carefully when driving vehicles.

Federal Alien and Registration Act (1940)

An attempt to prohibit the advocacy, abetting, advising, or teaching of the violent destruction fo the American government. Though it claimed to be looking for communists, it really tracked all immigrants. It will be repealed following the end of the war.

Assault - Facet I

An intentional unlawful threat to cause bodily injury by force. Harm must be imminent, defendant must have the apparent present ability to carry out this threat, and the threat must be made under circumstances which create in the other person a well-founded fear of imminent peril.

Validity of Offer

An offer is valid until it is either accepted or terminated by the actions of the parties - termination can occur through revocation or rejection

Legal Elements of a Valid Contract

An offer, acceptance, consideration, capacity, legality

Examples of Quasi Contracts

An unconscious patient's life being saved still owing a bill to the hospital; knowingly allowing someone to repair your driveway while you are home

Anticipatory Breach

An unequivocal indication by one party that they will not perform when performance is due (ex. a contractor tells the homeowner in Sept 2021 that the house will not be completed in June 2022 as the contract agreed, the homeowner is empowered to immediately sue, they do not have to wait until June 2022)

Request for Documetns

Any and all relevant documents can be requested (including electronic hard drives, emails, etc.) - requesting party must pay for all copies, the jury can be told if you delete or destroy evidence after becoming aware of the case.

Children Capacity

Any contract signed by a minor is voidable by the minor, the only exception to this is if a minor ratifies the contract or makes a payment to the contract when they turn 18

Felony

Any crime that is punished by more than one year of jail; goes on criminal record

Misdemeanor

Any less serious crime with a sentence up to one year in jail, goes on criminal record

Reply Brief

Appellee has 30 days after filing of Brief to reply - must file reply in order to participate in the appeal

Qualified Privilege in Defamation

Applies only in certain situations and can be lost - only attaches when all fo the following conditions are met: statement made with good faith belief in the statement's truth, serves a legitimate business need, statement was made on a proper occasion, statement was made only to persons with a legitimate common interest in hearing it

Liquidated Damages

Applies to contracts only, those damages specifically listed in the contract before the contract occurs

Main differences between arbitration and litigation

Arbitration is private (both the proceedings and award must remain secret), less expensive (discovery is quicker and less formal), faster, better for more complex cases that involve technology or specific materials as experts can be brought in to judge (rather than a generally uninformed judge). Arbitration is binding (no appeals process)

Commerce Clause

Article I, Section 8 - states that Congress has the exclusive power to regulate interstate commerce and prevent states from establishing laws that would prevent the free flow of goods within the nation

Full Faith and Credit Clause

Article IV, Section I - requires all states honor each other's laws and court decisions. There are no exceptions to this clause. Ex.) state drivers licenses being recognized in other states; judgements in one state against property in other states being honored

Privileges and Immunities Clause

Article IV, Section II - ensures that when an individual visits a state that is not their residence, this individual has the same rights and privileges of the residents of that state. There are exceptions to this clause, such as out of state tuition being higher or non-residents being denied the right to vote.

Intentional Torts - Harm to Person

Assault, Battery, False Imprisonment, infliction of emotional distress

Gift Acceptance

Assumed by law unless there is evidence that the gift was rejected

False Light - Facet I

Attributes characteristics, conduct, or beliefs that are false and are highly offensive to the plaintiff. Requires publicity and mental harm (which is why it's diff from defamation)

Battery - Facet I

Battery occurs if the defendant touched the plaintiff's person, with the intent to touch, and the defendant touched in a manner offensive to a reasonable person.

Criminal Standards of Proof

Beyond a reasonable doubt - must be 95-98% sure

Civil Victim Causes of Action

Body of rules that defines rights and remedies, and governs disputes between individuals and business entities. Purpose to provide compensationf or injuries not to punish

Motions for Summary Judgement

Both parties can file this motion after discovery ends - each side argue that there is no issue in dispute of material facts, asks the judge to make a judgement on if the law is in question (not guilt). If the judge ends the case, that decision is appealable, otherwise the case moves to trial.

What do depositions do?

Build Credibility - if witnesses attempt to change their stories, the depositions serve as a record to check against.

Civil Enforcement Standard of Proof

By a preponderance of evidence

Civil Victim Standard of Proof

By a preponderance of evidence - the guilt must be more probable than not and he jury must only be 51% sure

Problems with Punitive Damages

Can be excessive, runs the risk of killing companies, inconsistent - wealthier defendants are punished more ebcause they have more money to potentially pay out. The only person who receives punitive damages iis the person who sues first.

Touch in Battery

Can be extended to include things like clothing, the plaintiff's items, etc. - does not have to be imminent, can be delayed touch

Consent to Search

Can be provided to police for searches by anyone living in the space including roommates, spouses, and other 18+ family members. This consent only extends to common spaces though. Landlord or hotel manager cannot give consent to spaces you rent.

Limits to Covenant restrictions

Cannot restrict based on race, religion or parentage

Suing your Landlord

Cannot sue landlord for repairs if you are behind on rent; Best avenue for suing landlord is in small claims court (<$5000) as no lawyers are allowed on either side. While you are suing you simply pay your rent to the court and the rent is kept in escrow until the case is resolved.

Emergency Care

Care that addresses the imminent possibility of harm or death - can't be charged with battery

US v. Eichman (1990)

Case filed in response to the Flag Protection Act. The Supreme Court found the Flag Protection Act unconstitutional.

Concurrent Subject matter Jurisdiciton

Cases that can be brought to the federal or state level

Family Support Obligations

Child support

Tort

Civil victim cause of action - remedy is almost always money

Augusta National Golf Club Protests (2003)

Club's policy against female members also illustrate the lack of protection for assembly within the private sphere. The government has no interest in protecting freedom of assembly within private groups.

Cohen v. California (1971)

Cohen chose to wear a suit jacket with the phrase "**** the CDraft" written on the back into a courtroom. He was prosecuted for this action. The Supreme OCurt stated, "For while the particular four--letter word that;s being litigated here is perhaps more distasteful than others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric." Cohen's conviction was overturned.

Fassett v. DKE (1986)

College freshman got drunk at frat party and killed someone - sued leadership of fraternity but they were not found liable.

Act

Combination of statutes that regulate a certain area of law

What governs contracts?

Common Law or the Universal Commercial Code

Comparative Negligence

Compares the fault fo the plaintiff with the defendant

Negligence - Facet III

Compensatory, Punitive (ONLY granted if the plaintiff proves gross negligence), equitable remedies

Trespassing Facet III

Compensatory, Punitive, Equitable Remedies (injunctions are a common remedy)

Nuisance - Facet III

Compensatory, Punitive, Equitable, Self-Help or Abatement

Assault - Facet III

Compensatory, Punitive, Nominal, Equitable

Mediated Agreement

Compromise/contract that would be binding if signed however both aprties have the ability to leave at any point during mediation

Non-Adjudicated Disability Capacity

Condition that has not been found by the court, makes the contract voidable

Conversion - Facet II

Consent

Battery - Facet II

Consent, Medical consent, Self-Defense, Privilege of Arrest, Statute of Limitations (2 years), and Res Judicata

Legally Sufficient Value

Consideration exchanged must be either a legal benefit or legal detriment

Primary Sources fo Law

Constitutional, statutory, administrative, regulatory, or common law.

Tort Cause of Action

Contains an act, a failure to perform a legal obligation/duty and a violation or invasion of another's rights. All torts in this class fall under common law.

Termination of a Leasehold

Contract expires, notices - one party notifies that they no longer want to renew the lease (mainly applies to commercial property), abandonment, novation, eviction - the tenant does not abide by the lease, Constructive eviction - the landlord doesn't abide by the lease and the tenant wants out as a result

Difference between contract law, torts, and property law?

Contract law deals with the future or what will be (provides security for the many things that can go wrong between the time of agreement and performance); torts deal with the past, focusing on compensation for injuries that occurred in the past; property law deals with the present or what is

Implied Contract

Contract that arises form the conduct of the parties

Executed Contract

Contract that has had all the terms performed - it has ended

Negligence - Facet II

Contributory negligence, comparative negligence, assumption of risk, exculpatory agreements, statute of limitations (2 years), res judicata

Intentional Torts - Harm to Personal Property

Conversion

Grimshaw v. Ford (1978)

Court awarded $128 million to victim killed by vehicle exploding - largest awarded to date

Substantial Interference

Court balances the nature of the harm against the burden of preventing harm and usefulness of conduct. Ex.) the defendant used chemicals in their own yard that ran-off and got into the plaintiff's water

Appellant Court Results

Court can either affirm or reverse a lower court's ruling

What happens if law is changed?

Courts don't look retroactively - Precedent does not work laterally, precedents don't apply to other local jurisdictions, unless a higher cout has adopted that precedent

Spendthrift Trusts

Created to protect a beneficiary from spending all of the money that htey are entitled to by parceling out the trust proceeds over time (ex. may allow draws at age 21, 30, and 40 but not all at once) - if the benefactor of a spendthrift is completely bankrupt at 31, creditors wouldn't seize the money still remaining for the age 40 draw - it's protected

Enforcement of Remedies

Criminal = Jail; Civil Victim and Enforcement = claims against defendant's property

6th Amendment

Criminal procedure rights - speedy trial, public trial, imparital jury, informed of the nature and cause of the accusation, right to confront witnesses, right to attend trial, to call witnesses, to be represented by a lawyer.

Remedies of minor Breaches

Damages Only - the contract cannot be voided/voidable

Legality

Deals with the subject matter of a contract - in order for a contract to have legality, it must have a legal subject matter

Defamation Facet Ib

Defamation per se - certain statements are so egregious that they automatically hurt someone's reputation, therefore though the other aspects fo Facet Ia must be proven, there is no expectation to prove harm if defamation per se occurs

Intentional Torts - Harm to Dignity

Defamation, Invasion of Privacy (appropriation, intrusion, false light, public disclosure of a private fact), misuse of legal procedure

Sale of Real Property

Default - a good title or a promise that they legally own the property and have the right to sell it (make no promise about the condition fo the home)

Sale of Goods

Default - new precedent under the UCC guaranteeing two implied warranties - fitness for a particular purpose and merchantability

Private Sector Employment Termination

Default: at-will employment

Multiple Promisors

Default: multiple promisors accept liability for the entire promise jointly and severally - each person makes the entire promise (i.e. an apartment lease of $5,000 split by five roommates, however each roommate is on the hook for the entire $60K annual lease - they can be sued collectively or indivudally for the total)

Sales of Service/Service Agreements

Default: the service provider promises to perform in a reasonable fashion the authorized service and in exchange the customer promises to pay the service provider's customary charges for the service

Invasion of Privacy - Facet I

Defendant intentionally intruded or invaded the seclusion or solitude of the plaintiff's private affairs. That intrusion was highly offensive to a reasonable person.

Actual Malice

Defendant knew the statement was false and still stated it or that the defendant made the statement from a place of ill will or hatred. Exists because a public figure has a better way of correcting the record than an average person.

Intent to Touch in Battery

Defendant merely has to have the intent to do the act, not the intent to do harm, intent to touch can transfer to other people (such as if the defendant intended to touch one person but accidentally touched another because the initial person ducked)

Medical Consent in Battery

Defendant must obtain plaintiff's consent to be touched and that the consent be informed meaning the plaintiff knew the procedure and risks associated with it - the patient must know who is performing the procedure (the only exception is emergency care)

Remdial Sections of Act

Define what the consequences/remedy will be if you violate the substantive section (ex. found guilty fo class I misdemeanor)

Harm to Someone's Reputation

Defined as a statement that created ridicule, public hatred, contempt or degradation

How is law classified?

Defined in two major ways: the type of law it is and what areas of behavior it targets

Substantive Law

Defines specific rights and/or duties to which a person is entitled or required to comply with. Ex.) DUI laws that establish acceptable BAC levels

Procedural Law

Defines the process used to carry out a law. Ex.) A law that defines how a lawsuit is to be filed against another person

Criminal Law

Defines the rules that protect society as a whole by establishing certain minimum standards of acceptable behavior (Ex: no shooting, stabbing other people) and the punishments for violating and/or not meeting those standards (Ex: jailtime)

Adjudicated Disability Capacity

Disability that has been found by the court - determines a person as incompetent and makes the contract void

Termination of Tenancy by the Entireties

Divorce or death

Third Party Beneficiaries and Fraud

Do not have to prove that they knew of the misrepresentation, just that they would have benefited had the fraud not occurred

Intent and Trespass

Does not have to be intent to trespass ro knowledge that someone was breaking the law - the mere act of entering the property qualifies as trespassing. Making a mistake is not a valid defense

Brief of an Appellant

Due 30 days after the writ is ordered, must outline what errors were made and what precedent is relevant to the case

Properties exempt from Creditors (money judgements at law, loans, etc.)

Each state determines what property to exempt - FL is the most generous, applies to where the defendant is a resident at the time of the enforcement of the judgement

How can an offeree reject an offer?

Either formally or informally - letting time lapse, etc. - rejection only valid once it is received by the offeror

When is defendant's possession wrongful?

Either when item is stolen or if the defendant's possession started lawfully but subsequently became wrongful - property owner must have demanded for that property to be returned for it to subsequently be considered wrongful possession

Three Facets of Tort Cause of Action

Elements fo the cause of action created by common law - what does the defendant have to prove; defendant's potential defense or response (affirmative defense); remedy

Who enforces restrictive covenants?

Enforced by groups of private citizens known as Homeowner's Associations

Biggest difference between laws and ethics?

Enforcement. Ethics are enforced personally, while laws are enforced externally.

Landlord Ownership Duties

Ensure the implied warranty of habitability, provide maintenance (necessary repairs must be provided in a timely manner - no more than 21 days after the request was put into writing), provide prior notice before entering the property (min. 24 hrs), mitigate all damages (if someone abandons a lease early, finding a reasonably priced repair person, etc)

9th Amendment

Enumeration of certain rights in the Constitution shall not be constructed to deny or deisparage other rights retained by the people. The founders recognized that they did not kow everything the people have more irghts than what was explicitly written down in the Constitution - right to privacy for example

How do you resolve the breach of quasi contracts?

Equity - all about making transactions fair

State St Bank v. Ernst (1938)

Ernst, a financial anayst prepared certified documetns showing that hte accounts for a company were 100% collectible and that their assets exceeded their debts - meaning the company was solvent - the bank approved a loan to this company based on these documents, however the company defaulted on the loan within 6 months. Bank sued Ernst, Ernst argued he did not have an intent to deceive. Court found that Ernst had reckless disregard for the truth - therefore with regards to financial accountants or analysts, only recklessness needs to be shown, not intent

Wong Sun v. US (1965)

Established the fruit of the poisonous tree. Not only must courts exclude evidence obtained through illegal means, but they must also throw out any evidence discovered as a result of those illegal means (unless they can prove they would have found it through independent discovery)

4th Amendment

Established the right against illegal search and seizure. Right is not absolute. Government should leave people alone unless they can prove probable cause that a crime has been committed or is about to be committed.

Landlord Restrictions

Evict a tenant without notice and following proper eviction procedure; charge more than $50 in the nonrefundable application fee - if you choose to sign with that landlord, they must give that application fee back; charge more than 10% for a late fee; overcharge for security deposits (more than 2 months rent); deduct from the security deposit for normal wear and tear; hold security deposit for more than 30 days; seize personal property for failure to pay rent

Contempt of Court

Ex.) The court orders a person to clean up their yard within the next 30 days. For every day the yard is not cleaned, the person is fined $100. If the yard is still not cleaned by the end of the 30 days, the person is held in contempt of court and is placed in jail.

Sale of Real Property - Legislative Exceptions

Exceptions for new homes which must promise good title, habitability for one year, structural soundness for one year, foundational soundness for 5 years

Federal Constitutional Limit to Punitive Damages

Excessive punitive amoutns violate 14th A rights - no clear ratio, generally between 2x and 4x compensatory is accepted reality - reduciton of damages called "goring"

Proximate Causation

Exists to limit the "But For" test, asks "Were the consequences reasonably foreseeable from the defendant's actions?

Sale of Real Property Alternative

Express Warranty (guarantee of quality, safety, etc)

Trespassing Facet II

Expressive Consent, Implied Consent, Emergency, statute of limitations is FIVE years, res judicata

Mapp v. Ohio (1961)

Extended the exclusionary rule through incorporation (via 14th amendment) to include state courts and laws

Federal maritime limit

Exxon lawyers found an 1800s law that limited all punitive damages in federal maritime regions to 1x the compensatory damages

Federal Defamation Statutory Protections

Facebook and other Internet companies are granted immunity from any liability from contributory defamation for statements made using their platforms.

Difference between fed and state court systems?

Federal court system is generally slower and more political than the state court system.

Fee Simple Defeasible

Fee simple absolute with a condition - ex. you have complete ownership of the property as long as you _______________; if these conditions are not met, the property reverts from teh grantee back to the grantor

Answer

Filed by the defendant, challenges the claims made in the complaint - includes denial or affirmative defense, motion to dismiss

Complaint

Filed by the plaintiff, addresss the wrong that needs ot be addressed in the case - must establish jurisdiciton fo the case, must address the date that the incident occurred so the statute of limitations can be cosnidered, critical facts of the case must b explined, requested remedy must be listed

Criminal Remedies

Fine, incarceration, death penalty, criminal forfeiture, criminal restitution

Arbitration Clauses

Forced arbitration instead of ability to sue

Motion to Compel Discovery

Forces the refusing party to pay attorney's fee and eventually hold them in contempt of court for continued refusal. 5th A can be plead but that can be used against you in the trial

Subpoena

Formal request by a judge for a person's appearance in court

motion

Formal request for permission

Miranda v. Arizona (1965)

Four separate cases merged together, all dealing with confessions obtained through interrogation without a lawyer present. SCOTUS ruled that all people (even those not under arrest) have 5th Amendment rights, called "Miranda Rights" - not being aware of these rights does not mean you do not have htem; this is why police give Miranda Warnings when arresting suspects

Ownership Interests of Tenants in Common

Fractional Shares - tenants can be divided in any fractions; each tenant may possess the whole; each tenant may demand involuntary partition; each tenant may transfer interest while alive or when dead

1st Amendment

Freedom of Religion, press, speech, assembly, petition

Sutter v. Hurchings (1985)

Georgia statute prohibited the serving of alcohol ina. restaurant to an ntoxicated person and the sale to any person underage. The Georgia SC created negligent entrustment

Alternative to Service Agreements

Get an expressed warranty - guarantee service fulfilled adequately to get paid; Customary Charges - agreed upon hourly rate, cost plus a percentage, bidded agreement (shifts the risk to the service provider, as they must eat any costs that are above what they had bidded)

Recission

Getting out of the contract - essentially the contract is voidable

Causa Mortis Gifts

Gifts that were given in anticipation of death (ex. going into sudden, risky surgery) under circumstances that show the property is to revert to the donor if they survive.

Gitlow v. New York (1925)

Gitlow was convicted under a NEw Yrok anti-anarchy law for passing out socialist propaganda - SCOTUS ruled that the Bill of Rights (in this case, the 1st amendment right to speech) also applies to states, not just the federal level.

Contract Interpretation

Goal: to arrive at what the parties originally intended

Civil Enforcement Control

Government Agency

Criminal Style

Government v. Criminal Defendant - ex.) US v. Madaff

Eminent Domain

Government's taking of an individual's property for public use with just compensation

Criminal Control

Governmetn - the prosecuting attorney decides what cause of action to pursue - the victim is purely a witness

California v. Greenwood (1988)

Greenwood grew pot ina. greenhouse in his backyard. The police used thermal imaging to find the pot. Greenwood argued that the pot was not in plain view. The Supreme Court agreed.

Main Purpose Doctrine

the surety's main purpose in guaranteeing obligation is to secure an economic benefit for themself (ex. BP oil, creditor, sells oil to a plastics company, principal promisor, who then sells plastic pieces to Apple, surety. The plastics company falls behind in their contractual payments to BP who as a result threatens to cancel the contract. Apple steps up and orally or in writing agrees to cover the missing payments bc Apple financially benefits from the contract

Criminal Trial Sentencing

Jury not allowed to sentence, only to recommend a sentence to the judge

Who determines when duty of care has been breached?

Jury, as it is an issue of fact

Reversionary Right

Landlord can get the property back and also have a right to compensation for the property

Types of Non-Freehold Estates

Leasehold, Easement, License

Depositions

Live testimonies of the parties, witnesses, and third party experts - informal, taped interview done outside the courtroom, allows evidence to be preserved. All parties have the right to be present at a deposition and to have a copy of any deposition collected

Right of Survivorship

Main difference between joint tenancy and tenants in common; if one tenant decides to sell their share during their lifetime, they are able to do so - but the joint tenancy would become a tenancy in common; if one tenant in a joint tenancy were to die, the rights to their share of th property do not go to their heirs - instead the other surviving tenants simply enter a tenancy in common

Purpose of the Law

Maintain/create order ensure fairness, hold people accountable through consequences or remedies that create compliance, allow and promote change, maintain domestic and international peace

Three Clauses likely to inspire Strict Scrutiny of Adhesion Contracts

Mandatory Arbitration, Choice of Forum (where the arbitration or suit will happen), choice of law (which law will apply in that suit) - all three deal with due process

Madbury v. Madison

Marbury sued for a writ of mandamus (a court order ordering an elected offical to do theiir job) under the Judiciary Act of 1789. Under the Judciary Act of 1789, the Supreme Court had the power to issue such a writ. Chief Justice Marshall agreed that Marbury was owed damages for being denied his position; however, he disagreed that the Supreme Court could constitutionally issue such a writ.

State laws targeting punitive damages

Massachussets outlawed them. VA has $350K cap but Juries cannot be ifnormed of this cap. FL and TX - system based on level of fault - if defendant was innocent or acted in negligence they pay no punitive, if defendant intentionally committed a wrong there is no cap to punitive, if defendant was reckless the punitive is capped at 3 times the compensatory damages

Invitees

those that enter the property with permission and may receive a material benefit - a business guest

Licensee

those that enter the property with permission but do not receive a material benefit (social guest)

Personal Property

those things that are moveable or intangible (furniture, stocks, bank accounts, etc.)

Physical Duress

threat of physical harm to person to compel agreement, cause contracts to be void

Duress

threat that compels a contract to be signed

Purchase

title passes at different stages of the transaction depending on who is selling - if the sale is done by a merchant who is governed by the UCC, title passes upon tender of the goods. If the sale is doen by a non-merchant, title passes upon delivery only

Exclusively Federal Subject Matter

topics outlined in the constitution or concerning some federal stattues

Joint Tenancy can be dissolved by:

transfer of property during one tenant's lifetime, mutual agreement, partition suit

Trustee's Fiduciary Duties

treat the beneficiaries with honesty, good faith, loyalty, and prudence (investing safely, etc)

Charitable Trusts

trustee is instructed to use all assets on certain charities - generally done for tax purposes

Agreements Lacking Consideration (Enforceable)

unforeseen difficulties, promissory estoppel, contracts implied in fact and contracts (i.e. getting a hair cut), implied in law (quasi contracts)

Non-Fraudulent Misrepresentation

unintentional fraud, usually committed due to negligence, the same standard as fraudulent misrepresentation except there is no scienter (ex. a realtor tells a potential buyer that a neighborhood is quiet bc it has been quiet every time she visited - unaware that the street has a daycare or a band that practices every day, was careless and negligent when sharing the info but did not intentionally lie)

Lost Property

unintentionally or unknowingly dropped or left behind - owner did not intend to part with the personal property; finders do not acquire title against the original owner though they do have title against everyone else

bailment upon Delivery

upon delivery of the personal property, the bailor has surrendered exclusive possession and control over the personal property - the bailee must knowingly accept this property and must know the value of what he is given (ex. if a valet parker does not know that the car he is parking has $20K of cash in the trunk, he cannot be held liable if that cash is to be stolen because he parked it in a dark area)

Subpoena Duces Tecum

used to request documents of third parties - some documents can be submitted directly to the court if they are sensitive, the court willl place them under seal and then determine what is relevant and eneds to be released

Breach of Contract - Facet I

valid contract existed, promise was broken, determine who broke the promise; court will then determine who is able to sue for the breach (privity, assignee, and 3rd party beneficiary)

Unenforceable Contract

valid contract that becomes unenforceable when the law subsequently prohibits it

Ordinary Bailments

violations ar ehandled in suits of simple negligence and the liability owed differs based on the specific type

Special Bailments

violations are governed not by negligence but strict liability; common carrier (UPS, FedEx, any business that carries goods), warehouser (self-storage company), innkeeper (hotel, airbnb); all three types can limit liability but cannot get out of liability completely (ex. FedEx can limit the amount they are responsible for and hotels can place safes in the hotel rooms)

Prenup

waves the forced share to spouses

Intestate Succession

what occurs if you die without a will - all states have an intestacy statute

Stipulated Facts

what two parties agree on

Judicial Restraint

when exercising judicial review, the Court does not sit in judgement of the motives and wisdom of the legislators, nor will they hold a statute invalid just because it is unwise or unfair. All statutes are granted powerful presumption.

undue Influence

when one party in a dominant position takes advantage of another who is in a relationship with them based on trust, using their position to interfere with that person's ability to make their own decisions

Exceptions to "no relief clause"

when one party knew or had reason to know that the other had made a mistake, when the mistake made was so serious that the contract was unconscionable (generally results in unjust enrichment of one party at the sake of the other)

Difference between mediation and litigation

Mediation is private and confidential, no aspect of the proceedings can be used in alter trila - good for cases where the parties want to maintain an ongoing relationship, cheaper and quicker than court (can sometimes be a prerequisite for litigation)

Exclusively state Subject Matter

Most every case that is not exclusively federal

Valid Offer

Must manifest an objective intent to be bound by the contract, offer is certain and definite - contains essential terms, offer must be communicated to the offeree

Exchange

Must occur on each side for consideration to make a contract valid.

Exceptions to Zoning Ordinances

Must petition the court for a variance

Exceptions to Right of Revocation

Option Contracts, Firm Offers under the UCC, Statutory Irrevocability, Irrevocable Offers of Unilateral Contracts, Promissory Estoppel

Exceptions to Suretyship Provision

Original Promise and Main Purpose Doctrine

What happens if a party refused to answer a question during interrogatories?

Other party can file a motion to compel discovery.

Summons

Outlines the timeline that the defendant has to respond to the complaint - 21 days in V

Landowner's Duty of Care to Invitees

Owed a duty to warn and a duty to inspect the premises and erect safeguards if necessary - property owners are not liable for unknown defects (only those known via inspection); the condition must have existed for a sufficient period of time to allow the defendant an opportunity to discover it

Implication

Owner conveys a parcel of land and has made an apparent and permanent use in the nature of an easement which is not reflected in deed

Freehold Estates

Owner has exclusive rights to property for an undefined, indefinite period of time

Nonfreehold Estates

Owner has rights that are defined and are for a specific, ascertainable period of time

Herr v Boot (1990)

Parents of a 21 year old who died of alcohol poisoning sued their son's friends for pouring alcohol down his throat. Judge found their behavior not offensive as the son had consented to the act and the act did not deprive the son of his dignity.

Exception to Real Property under Statute of Frauds

Part Performance

Flag Protection Act (1989)

Passed by Congress in retaliation to Texas v. Johnson

Tenant Ownership Duties

Pay rent, maintain premises in good repair, abide by the exact terms of the lease

Distribution of Will

Per stirpes (taking by representation) and per capita (taking by equal shares)

Debt Collection

Petitioner must first file a judgement at teh courthouse which will go on the defendant's record - then it will be enforced

Rule of Interpretation

Plain meaning of the statute applied however if there is an ambiguous meaning, the court may look back at the legislative debates, previous drafts of the legislation, or even the stated prupose/intent of the law

Checks and balances

Prevent one branch from becoming too powerful and dominating the others. Each branch checks the other branches.

How is the reasonableness of the defendant's conduct determined in breaches of care?

Probability that harm will occur, seriousness of the resulting harm (someone being physically hurt will almost always result in a determination of unreasonable conduct), cost of taking precautions to reduce risk

Three Main Types of Strict Liability

Product Liability, Dangerous Animals (generally non-domesticated), and ultra-hazardous activities

merchantability

Promise created by law that a new item will work like it's supposed to (for its typical lifespan), is fir for its ordinary purpose and is labeled correctly

How to determine clear and present danger necessary to restict speech?

Proximity and degree

Invasion of Privacy - Facet II

Public Space or Consent

Public Disclosure of Embarrassing Private Facts - Facet I

Public disclosure of true facts, publicity required for public disclosure (sending information via email or social media often meets this requirement), the matter made public was so intimate that the publication outrages the publics sense of decency, the matter was not of public concern.

Acquiring Ownership or Title of Personal Property

Purchase, Gift, Possession

Breach of Contract - Facet III

Remedies can depend on the type of breach but generally include money damages, rescission, restitution, specific perofrmance, reformation, attorney's fees and can be limited by contract provisions

Dissent

Represents the opinion of the judges that lost the vote

Majority Opinion

Represents the opinion of the judges that won the votes

Motion to Quash Subpoena

Requesting the court throws out a subpoena - formal request to eliminate the subpoena is required as subpoenas cannot be ignored

Salinas v. Texas (2013)

Salinas was voluntarily questioned for a murder. When asked a question about a gun he owned, Salinas remained islent. Based on this choice, the police arrested Salinas. During the first trial, this silence is not mentioned - however, when it results in a mistrial, the prosecutor decides to bring it up as evidence in the retrial. The Supreme Court ruled that the 5th A does not establish a complete right to silence. If you want to take the 5th a person must actuall say "I plead the fifth" - silence on its own does not equate taking the 5th A right against self incrimination

Emoluments Clause

Says that the president cannot receive gifts or benefits from other nations.

Schenck v. US (1919)

Schenck, the head of the American Communist Party, published leaflets discouraging military service. The Supreme Court ruled that the first amendment was not an absolute right. Speech can be restricted if the words spoken or written represent a clear and present danger to society.

Substantive Section of Act

Sections that define what you can't do

Involuntary partition

Seeks to determine if the property can be divided in kind (almost impossible) or the fair market value of the property; if the property cannot be divided evenly, the court will then authorize the auction of the property to the highest bidder (a forced sale); the proceeds from this auction are split evenly among the tenants - but any tenant could bid/buy during the auction

Motion in Limine

Seeks to limit the admission of prejudiced evidence at trial - any evidence that is more prejudicial to one party than is probative should not be admitted

Interrogatories

Seires of written questions tha tmust be answered udner oath within a set time period (generally 35 days, though this can be extended) - only defendants and plaintiffs can file these, this is the most contentious stage in the proceedings

Assault - Facet II

Self Defense, Consent, Privilege (police - legal right to assault)

Correction

Simply fixes teh error within the case without the case having to be retried

Dixon v. Alabama (1961)

Six black Bama University studenets were expelled for being involved in a civil rights protest - the supreme court ruled that due process applies to all people, including university students. The only right that students do not have while in college is the right to an attorney.

Promissory Estoppel

Someone makes a promise that does not yet meet the level of a contract - if grandma promised to let you build a house on her property and was aware that you spent money getting the property ready to build that houe, she would have to pay relaicne damages to you for the money you put in if she decided to go back on that promise

Assignee

Someone who has a right assigned to them legally ex.) a tenant who decides to sublet their apartment to someone else grants legal rights to that new tenant - the new subtenant has the ability to sue the landlord should something go wrong

Basis of Reasonable Suspicion?

Specific and articulable facts

Pure Comparative Negligence

Splits any damages awarded according to the parties' fault - i.e. if plaintiff is 20% at fault, they are awarded only 80% of the damages

Modified Comparative Negligence

Splits the fault of the plaintiff with the defendant but determines that if the plaintiff is more than 50% at fault, then the plaintiff gets nothing

Duty of Care

Standard of care, what would a reasonably prudent person do under the circumstances of this case?

Defamation per Se

Statements that attribute to the plaintiff the commission of a crime involving moral turpitude, statements that indicate someone has a lothsome disease, statements that negatively affect a person's job or profession.

Planned Parenthood v. Casey (1992)

States can regulate abortion, but not with regulations that impose "undue burden" upon women; did not overturn Roe v. Wade, but gave states more leeway in regulating abortion (e.g., 24-hour waiting period, parental consent for minors)

Tenants in Common

Statutory presumptionl created by either a deed, a will, or an intestate

Scienter

Subjective test that attempts to prove what was going on in the defendant's mind" defendant had knowledge of the falsity of the statement AND made the statement with the intent to deceive

When is a trust valid?

Sufficiently identified funds or other property that enables title to pass to trustee; actual delivery - the right to property must be given up with the intent to pass the title

Serving Process on Defendant

Summons will be personally delivered to the defendant

kelo v. City of New London

Supreme Court ruled that eminent domain could be used to give property to private contractors but states rejected this ruling and passed amendments outlawing this process.

Standards for Eminent Domain

Taking can be the physical seizing of the property or the reduction fo the property's value; the private property must be real property or land; the public use must be justified (historically defined as any use that would benefit a broad segment of the general public, now broadened to include public trade centers and aesthetic considerations)

When can precedent be departed from?

Technological and medical Advances, simply incorrect, or to reflect a change in social attitudes

Furman v. Georgia (1972)

Teh Supreme Court found 37 states' death penalty statutes unconstitutional, stating that they were applied arbitrarily, irrationally, adn racially. 35 of these 37 states will simply rewrite their statutes.

Bailment

Temporary transfer of personal property created under an agreement that the bailee returns the personal property to the bailor (ex. a bailment occurs when you bring your clothes to a dry cleaning service); it applies to personal property only

Leasehold Tenant Ownership

Tenant has the exclusive right to use/possess and enjoy the land, along with a covenant of quiet enjoyment. They have no right to sell or develop the property. By giving these rights to the tenant, the landlord can no longer use them himself. Governed by contract law and property law - meaning both common and statutory law applies. In VA, Virginia Residential LL/Tenant Act provides tenants with all of the rights they are owed.

Dormant Commerce Clause

Test: when a state law is purely intrastate, the question is - does that state law "substantially affect" interstate commerce?

Types of Trusts

Testementary, Living (inter Vivios) - revocable or irrevocable

Eminent Domain

The 5th Amendment power given to all levels of government under the takings clause that empowers the government to take private property for public use with just compensation

Subject Matter Jurisdiction

The Constitution says what types of cases the federal courts are allowed to hear

The New York Times v. US (1971)

The NYT and the Washington Post had gained access to top-secret government documents about the Vietnam War, called the pentagon Papers. The Nixon Admin sued to try and prevent them from publishing them. The Supreme Court ruled that the press had every right to publish those documents.

What happens if the government were to re-zone a piece of property?

The existing owners may be able to petition the court, as such a zoning change would lower the value of their land - if the owner had an existing use in place, the development would be grandfathered into the zoning change (however this development cannot get bigger than it was at the zoning change and no new developments of that type can be built there_

Second Amendment

The purpose fo the 2nd Amendment is to highlight the right to bear arms. The government has little to no power to regulate or legislate the sale, possession, or usage of guns.

Easement

The right to use property for a specific purpose (ex. allowing utility company to lay lines on your property; shared driveway between multiple homes)

Defamation Facet II

The statement was ture, Privilege (immunity from liability granted if the societal interest in free speech is more improtant than the injury caused), Opinion, Consent, Federal Statutory Protections, Statute of Limitations (2 years)

Who owns the title when a trust is created?

The trustee owns title and holds it for the beneficiary - relationship based on trust

Fraud - Facet II

There are no affirmative defenses for lying.

Negligence - Facet Ia

There is an existence of a duty of care owed by the defendant to the plaintiff. The defendant must have breached their duty of care (acting irresponsibly), actual causation, proximate causation, and injury from breach of duty.

How are violations of civil law handled?

There is no government involved in violations of civil law. Actions are brought by the party who was injured by the violation of civil laws. The punishment for civil law violations does not involve jail. Violations of civil laws are generally settled through lawsuits and use the language of being sued.

Corporations are residents where?

They are incorporated, headquartered or doing business

Reasons an Appellate Court will review a lower court's decision

They want to make precedent, there is a conflict in the rulings of the lower courts, they need to correct an error at the lower court

Exceptions to Due Process

Things in plain view, things arrested people could potentially touch (things in immediate control), property where there is strong suspicion someone is in danger, hot prusuits of a suspect, actions necessary to prevent evidence destruction, airport security, sobriety roadblocks, actions to contain/protect public school students and prisoners, work related drug tests, exigent circumstances (highly contested), police acting in good faith even under a faulty warrant

Material Facts

Those facts that could lead to judgement in favor of one of the parties - thus there is no need to have a trial to resolve them

Masterpiece v. Colorado Civil Rights (2018)

Though the cakemaker did win this case, the Supreme Court did not state that religious belief could always justify the denial of service. Masterpierce only won because his rights were violated by the Colorado Civil Rights group throughout the trial's process.

Economic Duress

Threat of financial loss compels agreement, makes contract voidable.

Gift

Title passes from the donor to donee without consideration is donative intent, delivery, and acceptance

Long-arm statutes

To bring a non-resident of a state into that state for trial, it must be shown that the defendant: transacts business in the state, has contracts to supply goods or services within the state, committed a tortious civil act within the state, committed a tortious act outside the state but that the harm occurred within the state, owns, possesses, or uses any real property situated within the state

Why is law established?

To reflect shared moral principles of society or to be morally neural in the promotion of health and safety

Why would SCOTUS take a case?

To secure or change precedent; to reconcile conflicts with the circuit courts

Infractions

Traffic/Parking tickets

Intentional Torts - Harm to Real Property

Trespass and Nuisance

False Light - Facet II

Truth (defendant can prove the attribution was true), the plaintiff was not identifiable

Lawrence v. Texas (2003)

Two men who had been seen having sex in their own hom were convicted under a Texas anti-sodomy law. The Supreme Court found that law unconsitutitonal, stating that all people had a right to privacy within their own homes.

Hierarchy of Laws

US Constitution > Federal Statutes > Federal Admin Law > State Constitutions > State Statutes > State Admin Law > Common Law

Tenants in Common are Terminated:

Under a new deed or in an involuntary partition

Exception to Preexisting Duty

Unforeseen difficulties; Under the UCC consideration is not required

Appropriation - Facet I

Using someone's name, likeness (phrases, images that convey similarity to person, etc) for commercial use without consent. Standards differ for private and public figures: Private - personal right to be left alone was violated, this violation caused mental harm, the right to be left alone dies with the person. Public - a property right was violated, that violation caused monetary harm or loss, the right can be inherited or otherwise expressly transferred following the person's death.

Possession

Varies based on how the property was obtained: lost, mislaid, or abandoned

Civil Victim Control

Victim

Civil Victim Style

Victim v. Perpetrator - ex.) Jones v. Madaff

Wisconsin v. Yoder (1972)

Wisconsin law required children to attend school through the 12th grade. The Supreme Court ruled that Amish children could drop out after the 8th grade, as this was a religiously held belief.

Well-founded Fear of Imminent Peril Test

Would a reasonable person (not this particular plaintiff but an average person) be reasonable certain that consequences from this threat will result?

Reasonable Reliance by Plaintiff

Would a reasonable person rely on the statement in question? For ex. would a reasonable person believe a minivan was safe upon appropriate recommednation for a car from salesman to mother The plaintiff must know that there was a misrepresentation fo facts - the only exception to this knowledge is if the plaintiff is a third party beneficiary

Assault Consent Objective Test

Would the reasonable defendant believe that the plaintiff consented to the behavior?

At-Will Employment

You can be fired at any time for any or no reason (or quit at any time for any or no reason)

Fee Simple Absolute

You have every single possible right; the msot extensive type of ownership - the rights in this estate extend across the entire surface of the property, covering everything above and below it; the duration fo this estate is perpetual

Texas v. Johnson (1989)

Youth Communists burned an American flag outside the Republican Convention in Texas. They were arrested and prosecuted under the 1968 Texas Flag Desecration Act which criminalized the destruction of flags. The Supreme Court sided witht eh students, ruling that burning American flags is protected by the First Amendment.

Nuisance - Facet II

Zoning Laws, plaintiff came to the nuisance (moving into a region that was know for particular attribute)

Mailbox Rule

a contact is valid and complete when - acceptance is mailed, that acceptance was properly addressed to the offeror, it is beyond the offeree's control

Past Consideration

a contract attempted to provide benefits/agreement for something that happened in the past (ex. promising $500 for tutoring sessions that have already occurred, the tutoring was done without the promise of payment)

Transfer of Property by Deed

a deed is a document that transfers the rights from the grantor to the grantee

Gratuitous Promise

a gift, one side of the deal gave nothing

Fraud in the Execution

a person did not know they were signing a contract; the misrepresentation was about the nature fo the document evidencing the contract --> VOID

Novation

a three party agreement in which a new party takes over the rights and duties of the original parties in a contract and the original person is released from liability (i.e. a subtenant agrees to take place of the original person on a lease, taking responsibility for rent, etc)

Click-Wrap Agreements

a website requires you to review the terms of the agreement through a. series of pop-up windows asking the consumer to show that they agree to these terms

Strict Liability

absolute liability based on the nature of the activity in which the person is engaged as defined by the law

Unilateral Mistakes

absolutely no relief

Delivery

actual physical delivery, constructive delivery (includes any tangible item that allows access to the gift ie keys to a car), symbolic delivery (ie giving a large check when someone wins the lottery)

Voidable Contract

allows either of the parties to withdraw from the contract

Affirmative Defense

an admission of guilt that provides justification

Indemnification Clause

an agreement to shift losses to one of the contracting parties regardless of fault (ex. should you be sued for something you did at work, your boss will pay you back for any potential losses that suit would bring you)

Promissory Estoppel (offer revocability)

an equitable remedy used to prevent an offeror from revoking an offer prior to its acceptance if the offeree was induced by the offer to take action and reliance on it and the offeree was aware that the offeree was taking these actions

Part Performance

an oral contract of this kind can be valid if the parties made an oral contract that had all the essential terms present AND the contract had been partially peformed by the party seeking enforcement AND that partial performance was induced by the other party's misrepresentation (ex. a realtor discusses selling a building orally with a client. This conversation includes the price, square footage, and commission for the sale. The realtor never got a listing agreement signed. When the sale finishes, the client attempts to cut her of all commission. The realtor was able to show that they orally agreed to a well-defined contract and that she partially performed her obligations by finding a buyer - the original agreement was upheld despite not being signed)

Agreements for the sale of interest in land

any contract dealing with real property must be in writing as real property lasts forever

Firm Offers under the UCC

any offers put in writing by merchants are non-revocable - this applies mostly to advertisements (i.e. an ad that states 'this offer valid for 30 days' must be upheld for the entire 30 days)

Express Contract

any oral or written agreement about the terms of a promise - an oral agreemetn is just as valid as awritten one

Joint Tenancy

any property that is held by joint tenants will say so explicitly; any other type of joint ownership will be presumed ot be tenancy in common; created by a will or deed, but not an intestate succession (passing without a will). Time, title, interest, and possession must all be present.

third party beneficiary

anyone who is subject to benefit from the contract is able to sue

Specht v. Netscape (2000)

argued that because the terms were on the bottom of the page, the user did not realize they were there - the court agreed that keeping the terms at the bottom of the page was not conspicuous - companies must notify the consumer they are agreeing to something, however they could still hdie the terms at the bottom of the page (notice of agreement is what makes the contract legal)

Civil Law System

based on written codes of law and statutes - more rigid

Ransfer of property Process

before buying, potential buyer does record search looking for outstanding deeds against the property

Mutual Mistake

belief on the part of both parties was not in accord with facts - contracts based on mutual mistake are voidable by the adversely affected party

Testamentary Gifts (transfer of property)

can be as specific or general as teh grantor wishes them to be - devise: the gift of real property; bequest: the gift of personal property

Implied Contract in Fact

can be found by court if: the plaintiff provided some property or service to the defendant; the plaintiff expected to be paid for that property or service and a reasonable person in the position of the defendant would have expected to make compensation for the service or the property; the defendant had an opportunity to reject the property or service but did not

Res Judicata

civil version of double jeopardy, stating that you can only sue once

Tenancy by the Entireties

concurrent ownership between married partners only; created to avoid creditors

Other Rules of Contract Interpretation

contract is interpreted as a whole and in a manner designed ot give a lawful and reasonable meaning to all terms; the courts consider the purpose and intent of the parties; the language is given its general meaning, technical words given technical meanings; specific language is considered over general language; specifically negotated terms are considered over conflicting standardized language; construction against the draftsmen - ambiguity leans towards the non-authoring party's interpretation

Executory Contract

contract that has not had all the terms performed; it is ongoing

Uniform Commerical Codes

contracts between merchants and consumers

Agreements that can't be performed within 1 year

contracts that cannot by their terms be performed within one year from when the contract was made should be written down. the subject matter of the contract is irrelevant - all that matters is the date of when the contract was signed and the date that the contract begins (ex. a five year employment contract that was put in writing is VALID while a 1 year employment contract that was determined orally and begins in 20 days is NOT VALID as it takes more than 1 year to perform)

Exculpatory Agreements

contracts that prevent the plaintiff from being able to sue - do not apply to physical harm caused by a risk the plaintiff did not assume

Suretyship Provision

contractual promise by one party (surety) to a creditor (promiseee) to perform the duties or obligations of a third party if that principal promisor does not perform (ex. Bank of America loans $100K to principal promiser, 3rd party agrees in writing to pay for that loan if the principal promiser does not)

Exculpatory Clauses

contractual waving of the right to sue before the loss even occurs - these usually do not apply if physical harm occurs, particularly if that harm was unrelated to the contract

Uniform Statutes

created by a conference of the state board of commissioners. A large group fo scholars, legal experts, adn others get together to make model laws. States can choose ot adopt this model legislation in entirety or in parts.

Testamentary Trust

created by a will, not effective until the grantor/testator dies and revocable until the death of the testator - if children are minors, this trust can provide for them, the same applies for disabled children regardless of their age; these provide protections for benefactors who for any reason may spend all the money they are going to be willed

Ex Post Facto Laws

criminalize an action after it occurred and then prosecuted the person for it

Statutory Damages

damages that fall under a statute that explicitly defines the damagees available. ex. copyright law - typically est. for cases where exact damage amounts would be difficult to prove, damage amounts are purely arbitrary

Universal Commercial Code

deals with the sale of goods by and between merchants, making all contracts uniform - based entirely on good faith on the side of the merchant

In order for transfer by deed to occur, what must be present?

deed must be written down (avoid the statute of frauds), names and addresses of the grantor and grantee, legal description fo the property, tie of conveyance - the closing (happens simultaneously between both parties), type of deed (sale, gift, etc) - a fee is paid based on the type fo deed, signatures of the parties - the signature of the grantee is required, delivery - the grantor must deliver the document to the grantee

Restrictive Covenants

deed to a house may reference a "restrictie covenant masterplan," which is a separate document typically outlining the developer's vision for the neighborhood that any buyer implicitly agrees to by buying the home

Appelate Style

defendant becomes the appellant and the petitioner becomes the appellee

Civil Law

defines the private relations between members of society (ex. negligence)

Denial

denial of liability or guilt

Actual Causation

determined using the "But For" test - did the injury occur because of the defendant's conduct OR would it have occurred anyways?

Offers under the UCC

do not have to be certain or definite - the offer can have open terms with the law stepping in to fill any gaps. Advertisements are not considered offers - they are viewed as offers for the consumer to make an offer.

Appellate Courts

do not try cases, they only look for errors in teh roiginal case

Mutual benefit of Bailee and Bailor

duty imposed on the bailee is reasonable care (ex. dry cleaning service)

Express Agreement

easement is clearly defined, specific; created by a contract or a will

Common Law System

empowers judges to make law - common law is more flexible and can therefore change

Police Power

empowers the state to compel certain actions to promote health, safety, and welfare

ownership interests in a joint tenancy

equal shares, each tenant may possess the whole, each tenant has a right of survivorship, each tenant may demand involuntary partition

Ownership Interests under Tenancy by the Entireties

equal shares; neither spouse may convey separately their interest during their lifetime; each tenant can have possession of the whole

Limitation fo Liability clauses

ex. 'only liable up to $500' or 'only liable for parts' etc

Necessity

ex. it is necessary that property connects to the main road, law may create an easement to travel across another person's property if the original is landlocked.

Multiple Promisors Alternative

ex. roommates could agree that if any roommate were to be sued individually, all would owe attorney's fees OR the landlord could agree to set a lower total amount as what each individual would owe if the lease were to fall through

Problems with probate Process

expensive and slow due to the fees and speed of the court - also becomes public record which potentially encourages teh heairs to challenge the will

The Court of Law

extremely rigid; remedy provided: money (money judgements at law, damages); Procedure: juries; If a man was promised $50,000 to paint a house but became injured halfway and could not finish the job, the Court of Law would rule the man had breached his contract and thus was owed nothing. Enforcement: Money judgements at law is placed against a defendant's property.

Constitutional Rights

federal adn state rights guaranteed by a constitution

Magnuson Moss Warranty Act

federal law that says all merchants must honor implied warranties and that consumers can bring an action in a federal court in the customer's jurisdiction and that the merchant must pay attorney fees

Administrative Agency

federal/state/local government agency that is established to perfomr a specific function over a specific area of law.

Types of Freehold Estates

fee simple absolute, fee simple defeasible, life estate

Salem v. Helm (1983)

found that the lenght of the sentence given must be proportional to the crime. A disprorportionate sentence would be seen as cruel and unusual

Inter vivos gifts

gifts that were given during the donor's lifetime - these are irrevocable

Enabling Statute

gives power to regulate and punish - ex. creation of SEC through Securities Exchange Act of 1934

Three Strikes, You're Out Program

guaranteed a life sentence for someone convicted of a third felony - regardless fo the felony's nature. The Supreme Court found this program constitutional so long as the felons were still eligible for parole.

Acceptance

guided by the mirror image rule and mailbox rule - silence is never acceptance

Contributory Negligence

harshest affirmative defense - states that if the plaintiff has any fault that contributes to their injury, they get nothing

Surviving Spouse

has a forced statutory share - cannot cut your spouse out of a will; if you have no children or grandchildren, the spouse will get 1/2 of the deceased estate. If you have surviving children or grandchildren, the spouse will get 1/3 of the deceased estate

Blueford v. Arkansas (2012)

if a defendant has a mistrial, all charges can be retried, regardless if a mistrial was found on thseo particular charges or if he was found not-guilty

Abatement (estate)

if an estate's assets are insufficient to pay all bequests in full, each benefactor's gift is reduced proportionally

General Jurisdiction

if an indvidual has extensive contact with the state that is substantial, continuous, and systematic, that defendant can be sued in that state outside of those specific interests

Garnishment

if defendant has no property, this can be placed on their wages - allows the petitioner to sue the defendants boss for a percentage fo the wages

Material breach

if the other party receives something substantially different from what the contract specified, the non-breaching party is no longer required to perform and has immediate right to all remedies (ex. a contractor never showed up to build a house or they built a house of drastically different quality than what was agreed upon).

Reclaiming lost Property

if the owner were to ask for the property back, a finder must return it to the original owner - however the finder is able to essentially own the item over any other potential other person; keeping lost property that you know belongs to another specific person is conversion; cannot pass the title for something that you do not own, therefore though you can sell found property, the original owner can always claim that property even if you've sold it.

Restitution

money or property exchanged prior to the contract's signing is returned when the constitution is rescinded (can only occur alongside rescission) - i.e. downpayment in a contract is returned

Social Host Laws

most states hold hosts liable if their guests are underage

Order of Zoning Regulations

most to least stringent controls on use - property can always be used for any "less stringent" zoning types (anything used below it on the list), however the list cannot move upwards.

Discovery Challenges

motion to quash subpoena, motion to compel discovery, motion for sanctions for spoilation of evidence

Unforeseen difficulties

must be shown that: the contract was performed under burdensome conditions AND these conditions were not anticipated nor even within the contemplation of the parties at the time the contract was signed/made AND the promisee agreed to pay what is reasonable and fair in view of these changed conditions

California v. Ciraolo (1986)

neighbor reported him for growing pot int he backyard. Upon first inspection, the police could not see any pot. Decided to fly a place over the yard, out of which they could see the pot. Ciraolo argued that th pot was not in plain view - the Supreme Court disagreed, the pot was still seen with the naked eye

Arbitration

neutral third party chosen by the court and the parties involved to read over both parties' arguments and evidence to determine an award (hiring of a private judge essentially)

Mediation

neutral third party meets with both the parties (and their lawyers) to facilitate an agreement between the two parties - parties decide what course of action to follow

Public Disclosure of Embarrassing Private Facts - Facet II

newsworthiness, consent, the disclosure doesn't outrage the public's sense of decency, the event took place in public

Void Contract

not a contract at all - null and void, meaning it either does not have all the required elements or was based on fraud.

Implied Contract in Law (quasi contract)

not a contract but instead a situation that the court or law views as a contract - a benefit was conferred onto the defendant, the defendant appreciated the benefit, the plaintiff reasonably expected compensation, because of the circumstances under which the defendant received the benefit, it would result in the unjust enrichment of the defendant

Powerful Presumption

notion that they are valid until proven otherwise

Cases of First Impression

occur when there is no precedent for the issue in dispute. These cases generally pull from analogous laws in other states

Tender of the Goods

occurs when the goods are made available either by deliver, physically handing the goods over, or identifying the goods

Plain View Doctrine

officers may examine and use as evidence, without a warrant, contraband or evidence that is in open view at a location where they are legally permitted to be

5th A in Criminal

on/off switch - to exercise 5th amendment right, the defendant must not take the stand. By taking the stand and testifying, the defendant waives any right to plead the fifth. The prosecutor cannot use a defendant not taking the stand as evidence.

Trespassing Facet I

one of the only "or" torts where one condition must be met Defendant purposefully entered or remained on someone else's land or the defend caused a thing or third person to enter or remain on someone else's land, or the defendant failed to remove from the land something that they had a duty to remove.

Contract of Adhesion

one party has all the bargaining power and writes a contract primarily to their advantage - legal because the agreement is not a necessity. Generally used for online services. By agreeing to use these services, you are accepting their contract

Marriage Provision

only prenuptial agreements must be in writing

Remand

orders the case be retried again from the start

Landowner's Duty of Care to Licensee

owed a duty to warn of any known dangerous activities or conditions which the licensee is unlikely to discover

Marketable Title

ownership free from encumberments or defects in the chain of title or any event that would deprive the seller of the title

Minor Breaches

partial or immaterial breach OR where there was substantial performance by one of the parties (ex. the color of the pipes used in a house were wrong, but the pipes were still functional and of the same quality agreed to) - Courts will always give leeway on time, even if the contract is overdue by a reasonable period (only exception to this is if the contract specifies that time is of the essence)

Preexisting Duty

parties in a contract agree to modify or alter the contract before it was completed without adding new consideration - all modifications to an existing contract require new consideration

Federal Sedition Act (1917) and the Espionage Act (1918)

passed as America entered into WWI in an effort to stifle public dislike for the war, these acts criminalized any disloyal, profane, or abusive language about the American government or military and prohibited any speech intended to incite insubordination, disloyalty, mutiny, or a refusal of duty.

Writ of Certiorari

petitioned for during an appeal - higher court sends this writ down to a lower court requesting documents and transcripts of the first trial to review them

Employment Division v. Smith (1990)

peyote use being a religiouus practic did not protect the defendant from being fired after failing a drug test.

Levy and Sale

power of the sherriff - meaning the defendant can be required to list under oath all fo the assets they possess. Court can issue this against some or all of the disclosed assets - in order for those assets to be seized, a warrant must be issued. Sold at public auction, profit goes to petitioner. AKA attachment

Agreements Lacking Consideration (unenforceable)

pre-existing duty, past consideration, gratuitous promise, illusory promise

Takings Clause

prevents the taking of an individual's property without proper payment - compensation is determined to be the fair market value for the property

Pre-sentence Report

produced byt he prosecution and defense - includes victim impact statements, the defendant's record, and any mitigating evidence that could absolve the defendant

Federal Alien and Sedition Act (1789)

prohibited false, scandalous, or malicious words against the government. It was passed by John Adams but was later repealed during the Jefferson administration. Jefferson also pardoned anyone who was prosecuted under ti.

Bilateral Contract

promise for a promise i.e. contractor agrees to build a home in exchange for payment of $500,000

Unilateral Contract

promise for performance i.e. person promises $500 to anyone who finds their lost cat

Counteroffer

promise where the offeree changes the offer, killing the original offer - only valid once received. Counter offers are not negotiation - these are definitive changes that create a new contract; cannot be turned back on, the original offer dies when a counter offer is created

Exception to Sale of Goods over $500 under statute of frauds

promissory estoppel - no contract ever existed under pormissory estoppel, meaning that only reliance damages can be sued for

8th Amendment

protection against cruel and unusual punishment - SCOTUS has ruled that punishment can be allowed to be tierh cruel or unusual just not both.

Absolute Privilege in Defamation

protects the defendant no matter the defendant's motive or intent - applied when a public policy interest favors free speech over any potential harm (judicial proceedings, certain executive officers performing government duties, members of congress enacting business on the floor, conversations between spouses, and political ads)

Jurisdiction

refers to the court's authority to speak the law. Gives courts the pwoer to hear a case

Specific Jurisdiction

refers to the extend to which a person's minimal contact must be relevant to the case - if a person has only one contact with the state (has one contract, owns one piece of land, etc.), the lawsuit in that state must be limited to that specific contact or interest

Special Duties of Care

relationships necessitated by common law when duties of care must be exercised - parent/child; doctor/patient; school/student; businesses open to the public/customer; innkeeper/guest; employer/employee; landlord/tenant

Reversing Lower Court Ruling

remand or correction

Motion to Dismiss

request for the court to throw out the case - can be sustained (ending the case) or the case moves on to trial

Mirror image rule

requires unequivocal acceptance where both sides of the deal match

Statutory Rights

rights created by bills by Congress or state legislatures

McDonald v. Chicago (2010)

ruled that if the right to a gun was a fundamentla right, it could not be restricted by the states. The 2nd A was incorporated into the 14th A due process clause - it therefore applies to the states as well as the federal government. Not an unlimited right though, some reasonable restrictions may exist.

Contract

set of promises, the breach of which the law gives a remedy or performance (a law recognized duty)

Revoking a Will

simply physically destroy old will and make a new one OR wills can be amended through a codicil, these amendments have all the same requirements as the original will though. Irrevocable upon death.

Mutual Assent Created by Law

situations that imply the existence of a contract: multiple promisors, private sector employment termination, sales of service/service agreements, sale of real property, sale of goods

Zippo Mfg. Co. v. Zippo Dot Com, Inc. (jurisdiction in cyberspace)

sliding scale to determine jurisdiction for online companies - states have no jurisdiction over passive websites or those websites that only provide information and operate as advertisements. States do have jurisdiction over active websites that allow you to conduct business

Unconscionable Adhesion Agreements

so unfair to the weaker party that the court will refuse to enforce them. The court will generally be apprehensive to highly technical terms that are difficult for the ordinary person to understand or terms that wave all of the consumer's rights

legal detriment

something that the promisor or promisee was previously under no legal obligation to do or refrain from doing

Engagement Ring Gift Laws

sometimes viewed as conditional gifts meaning they must be given abck if engagement ends, some states view as implied gifts meaning whoever was at fault for the engagement failing gives the ring back, all other states view as unconditional gifts

Ethics

standards based on moral principles each individual follows - what an individual believes is right, fair, and good (or just). Not the law and not universal standards.

Judicial Activism

start by looking at the acvutal language of the Constitution but if that doesn't fully address the issue at hadn, look at other factors. Ex.) Minnesota v. Carter - the dissent argued that the intent of the 4th Amendment was to stop the government from arresting people without a warrant, regardless of where the person physically is. Thus the 4th Amendment should apply to social guests.

Statute of Frauds

state statute requires certain types of contracts be written in order to be valid, oral contracts no valid in these cases

Due Process

stated in the 5th (federal protection) and 14th (state protection) amendments. it states that the government shall not deprive anyone of life, liberty, or property without the process fo law. A person is to be treated fairly and equally by the government.

double jeopardy

states that a defendant may not be charged twice for the same crime - protects the idnividual from harassment and keeps the prosecutor from becoming too powerful. A person can be charged with multiple charges for the same crime without violating double jeopardy. however, all charges must be tried at once

Criminal Forfeiture

states that any money or goods used in illegal activity can be seized, kept, or sold by police for profit. No proportionality - if one pound of weed is found on a $10 million yacht, that yacht can still be seized and sold.

Exclusionary Rule

states that when there is an illegal search, seize or arrest, any evidence seized cannot be used against the defendant on trial.

By prescription

statutory - must show person uses a portion of the land owned by another in a way that is adverse to the rightful owner's use; that use is open and notorious; the use was continuous and uninterrupted over a specific period of time (the amount of time varies by state)

License

temporary use - the allowing of others onto your property temporarily; license can be revoked if the agreement is violated - staying after it has been revoked is trespassing

Ordinances

term for zoning regulations - common examples include regulations on the height of a building, the use of the land, building standards, etc.

Liquidated Damages (Breach Remedy)

the amount that was previously agreed upon and was written into the contract (generally arbitrary) - contracts will not allow these damages to rise to the level of penalties, liquidated damages are not intended to be punitive, as the breach of a contract should not result in punishment

Original Jurisdiction

the authority to originate or start a case - all cases must begin in trial courts

Federalism

the balance of power between state and federal government as written in the constitution

Reformation

the court provides interpretation of ambiguity

Law

the creation and enforcement of duties, obligations, and rights. Reflect our collective accepted view of society and illustrate how we expect people to behave. For example, the speed limit is a law that regulates the behaviors of drivers.

Stare Decisis

the doctrine that requires courts ot adhere to and apply principles of law decided in prior cases (precedent) in that ocurt and in courts of higher ranks within the jurisdiction to later cases involving substantially similar or the same facts. Because of this, it is often very difficult to overturn precedent

Donative Intent

the donor has a present intent to make an immediate and final gift

Bailor's Sole Benefit

the duty imposed on the bailee is slight care, which is the lowest responsibility (ex. free valet parking)

Bailee's Sole Benefit

the duty imposed on the bailee is utmost care which is the higehst level of responsibility (ex. friend loans you their car for free)

Consideration

the exchange of something of value (good, service, etc.) given by each party

Irrevocable Living Trust

the grantor gives up all control of the trust property to a trustee, relinquishing all rights to alter or amend the trust - useful if a person is about to die and has too much money to easily give away - the grantor can dictate all the rules for distribution and then give up all the property and money to a trustee; also grantor then gets out of paying any estate taxes

Revocable Living Trust

the grantor retains control over the trust property and is free to amend, alter or revoke the trust during their lifetime - mainly used in estate planning and setting up during life to avoid probate or the process of a will's authentication and allocation of assets

Real Property

the land and anything attached to it that is grown or immovable (buildings, trees, anything built into the grounds, etc.)

Statutory Irrevocability

the law states that the offer cannot be revoked i.e. VA statute defines all construction bids as binding

Fraud in the Inducement

the misrepresentation was about the subject matter of the contract (ex. claiming to sell a dog who has never been in a dog show as a 'show dog' --> VOIDABLE only by the injured parties

Negligent Entrustment

the notion that you cannot provide the mechanism or means for someone to harm another person if there is a good chance they're going to act on it

Option Contracts

the offeror binds themselves to hold the offer open for a specified period of time bc the offeree has given contractual consideration (money or a specific performance) i.e. offeror agrees to hold the offer open for two weeks, since the offeree has agreed to pay an amount of money up front

In Personam or Personal Jurisdiction

Jurisdiction determined by the people involved and mst important which state they are the resident of

Misdemanor Trial Procedure

1. Arrest 2. Preliminary Hearing - if you are facing a sentence that involves jailtime, you have a constitutional right to a lawyer. At the prelim hearing, the date for the trail is set. The charges against you are also made known. 3. District Court hearing - district court does not keep a record, if found guilty you have a right to appeal for trial de novo

Common order of Succession

1. Living Spouse 2. Living Children and descendants of deceased children 3. Parents (adopted count, step parents do not) 4. Siblings and Descendants of deceased siblings 5. Living Grandparents and descendants of deceased grandparents

Felony Trial Procedure

1. Prelim Hearing - determines if there is probable cause for charges to be brought 2. Discovery 3. Motions in Limine 4. Trial (jury selection) 5. Opening Statements 6. Prosecution's case in chief 7. Motion to Dismiss 8. Defense Case in Chief 9. Prosecution Rebuttal 10. Jury Instructions 11. Closing Arguments 12. Jury Deliberations 13. Post Trial motions - can ask for retrial 14. Sentencing 15. Appeal

Process of Probate

1. completed will is taken and filed with the clerk's office 2. the heirs are notified that a will has been filed 3. a list of assets and debts are filed with the clerk's office 4. all distributions are approved by the court

Revocable Trust Process

1. grantor only has to put in $1 - not all of the property their possess 2. grantor then writes a pour-over will which states that anything not listed in the will pours-over into the trust. 3. Trustee then distributes as they wish 4. No need for court approval

What created federalism?

10th Amendment - anything not explicitly listed as a right of the federal government is implied ot be a right of the states

DC v. Heller (2010)

A DC law banned handguns, hwoever, because DC is treated as a federal jurisdiction, this law had the same impact as a federal law. The Supreme COurt defined the right to bear arms as unconnected to militias. The 2nd A protects your right to possess a handgun in your own home as well as the right to defend yourself in your own home. These rights were defined as fundamental rights, meaning they cannot be taken away by the government.

Gonzales v. Raich (2005)

A federal law made it a crime to cultivate, possess, or use medical marijuana, even if the state permitted it. This law was passed in direct response to California's legalization of weed. Lopez was the precedent - the states should have the authority to determine what is a crime. The Supreme Court ruled that, despite medical marijuana use being personal and non-commercial, this federal law was constitutional. The private use of marijuana could result in "possible leakage" or the production of too much for consumption

Testamentary Gifts

A gift given in a last will and testament - revocable during the donor's life but irrevocable after the donor's death

Grand Jury Indictment

A grand jury is a panel that mut be held before a defendant can be charged with any serious crime (felonies, those with prison sentences longer than one year) - between 50 and 100 people who look at all the potential charges a defendant is facing - they do not determine guilt or innocence (a petit jury does this) to ensure the police are not harrassing someone - all charges must be well-founded

Warrant

A legal order by a judge allowing police to enter property or seize a person. Warrants must have the exact location that is to be searched, the identification of who will be searched, and an acknowledgement of what the police are hoping to seize.

merger Clause

A merger clause merges together all past relevant agreements into the contract - Exceptions: merger clause cannot take effect if it is proven that the contract was void, voidable, or unenforceable due to defects in its formation

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

Fitness for a Particular Purpose

A promise made by the seller when an item is purchased with a specific need in mind that is conveyed to the seller who then assists the buyer in selecting the item. ex.) seller tells buyer that a wagon can hold 300 lbs

Specific Performance

A remedy that only applies to contracts (ex - compelling someone to follow through on a contract they signed)

Request for Admissions

A series fo yes or no questions that aim to reduce the areas fo dispute and determined the stipulated facts - framed as "Admit or deny..." only parties can be asked these questions

Transfer of Real Property by Trust

A trust is a fiduciary relationship in which one party (grantor) gives another party (trustee) the right to hold title to property (real or personal) or assets for the benefit of a third party (beneficiary)

Browse-Wrap Agreements

A website requires you scroll down to see the terms and conditions - not illegal, but courts are more likely to scrutinize these

US v. Cruikshank (1875)

A white mob killed several freed black slaves. The freed slaves had been denied the right to own guns by their state government, so they had no way to defend themselves. The Court ruled that the 2nd Amendment only applied to federal regulations regarding guns. States were free to establish any regulations they wanted

Transfer of Property by Will

A will "speaks at death" it is a document created while you are alive that says what you want to happen with your property when you die

Chancery Court

Grounded in concepts of fairness; remedy provided: more than money (injunction, specific performance, promissory estoppel); rules are flexible: if a man was promised $50,000 to paint a house but became injured halfway and could not finish the job, the Chancery Court would view him not being paid as an "unjust enrichment" on the behalf of the homeowner. The man would eb owed $25,000 for finishing half the job. Enforcement: Court has mroe power on how to collect; they can impose fines and even hold a person in contempt of court

Generally Offensive Behavior

Has been defined as any physical harm or any behavior that is sexual in nature

Burwell v. Hobby Lobby Stores (2014)

Hobby Lobby could not be compelled by ObamaCare to provide birth control to its employees because it was religiously opposed to its use

Not all civil victim cases are requried to have a jury

However if etiher party wants a jury, the trial must have a jury

Abandoned Property

If personal property is thrown away or left with the intention of relinquishing ownership then it is abandoned. Anyone has title to abandoned property.

When are Civil Cases ruled in default?

If the plaintiff does not respond to a summons - can still argue the damages to be awarded, but can no longer argue liability

Federal Question

If the question tha tis addressed in the case is not one that must be addressed exclusively by the federal courts, it can be brought to either state or federal courts

Presser v. Illinois (1886)

Illinois passed a law prohibiting the formation fo militias. Because the 2nd Amendment only applies to the federal government, the court ruled that Illinois was justified in doing this.

Transfer of Leasehold

In a leasehold, the property interest is attached to the land, not the individuals involved in the contract (ex. if a landlord sells a property to a new landlord, the original contract does not transfer directly to the new landlord but you cannot be removed)

How do you determine whether Chancery Court or Court of Law?

In every state except Deleware, the Chancery Court and Court of Law are combined into one court. They exist in the same building with only one decision-maker. The main way to determine which is which is to look at what remedy is being asked for. Equity only applies for civil cases. Criminal cases must follow the statutes.

Venue Challenge

In order to dispute the jurisdiction fo the case, the defendant must submit this first - files a motion for special appearance to appear in court to debate the venue without consenting to that venue by showing up

levels of fault for torts

Intentional, reckless (unintentional action that still puts people in harm's way), negligence (accident, careless action), innocent

Intentional Torts - Harm to Economic Interests

Interference with a contractual relationship, disparagement, fraudulent misrepresentation

Gibson v. Ogden (1824)

NY law gave NY resident exclusive rights to NY waterways. Ogden, a NY resident, had a ferry and operated his business under these rights. Gibbons, a NJ resident, had a competing ferry operation and wanted to operate in the same waters as Ogden. When Gibbons began to do so, Ogden sued. Issue: can a state law which grants exclusive rights to its own citizens conflict with the lagnauge of the Commerce Clause? Does "among the several states also apply to intrastate laws. SCOTUS ruled that "among the several states" applies to interstate and intrastate laws

Negligence - Facet Ib

Negligence per se is any negligence defined by statute; for example, serving alcohol to a minor makes you liable for anything that minor does while drunk

Trial de Novo

New trial (occurs when the original was not recorded)

Appropriation - Facet II

Newsworthiness, consent, parody and satire

Landowner's Duty of Care to Trespassers

No duty. Only exception to this rule is if the property owner knows or has reason to anticipate that children will trespass on the alnd; the landowner then has an obligation to protect them from injury by fixing the harmful condition or ensuring that children do not have access to that property

Can Eminent Domain be fought?

No, all a citizen can do is challenge the government's assessment of "fair market value"

Are conditions protected under the 8th Amendment?

No, because the criminal always has another option - jail time.

Can duties be delegated or assigned away?

No, if the subtenant were to stop payng rent, the original tenant would be on the hook.

Recordation

Not a requirment but any sale will have this - legal filing of the sale's occurrence. Shows the public that you own the property adn serves as fair warning agianst anyone that also tries to buy the property (constructive not actual, if recordation does not occur, anyone can buy the property, the 'original' owner would have no more legal right to the property than the new buyer)

Recital

Not a statement of evidence but simply a statement of the contract's intent and purpose

Judicial Review

Not found in the Constitution, derived form the supremacy clause

Breach fo Contract - Facet II

Novation, Conduct Invalidating Consent (duress, undue influence, fraud, misrepresentation, mistakes), Statute of Frauds, Statute of Limitations (5 years), Res Judicata

Assumption of the Risk

Nullifies responsibility if the plaintiff knew of the risk to their action. The defendant must show that the plaintiff had knowledge fo the risk and the plaintiff voluntarily placed themselves in the zone of danger

Contract Formation

Offer and acceptance viewed together as mutual assent, parties must knowingly and voluntarily consent to be legally bound by their promises

Revocation

Offeror has the right of revocation up until the point of acceptance, even if a specific time period is given. Offeror is the master of their offer, they can do what they want with it.

Stop and Frisk (terry stop)

Ohio v. Terry (1968) - police considered to know more than the average citizen; legal bc a reasonably pruden person would have believed or been warranted in believing that man was armed and therefore presented a safety threat to the officer. 4th A prohibition on unreasonable search and seizure is not violated whena. police officer stops a suspect on the street and frisks that person without probable cause for arrest so long as the officer has reasonable suspicion that the person has/is about to commit a crime and the officer has a reasonable belief that the person is armed and dangerous.

Privity

Old precedent for who can sue in breach of contract - must be one of the parties involved

When is a revocation valid?

Once it is received or communicated to the offeree

Irrevocable Offers of Unilateral Contracts

Once the performance begins in a unilateral contract, the offer has been accepted

Police's Privilege to battery

Only applies to valid arrests and to force that reasonable necessary to complete the arrest - excessive force will cause this defense to fail

US v. O'Brien (1968)

The Selective Service Act (SSA) created the draft. Angered by the draft, many young men burned their draft cards. In response, Congress amended the SSA to criminalize the knowing destruction or mutilation of a draft card. O'Brien who had burned his own draft card was prosecuted and claimed this action was symbolic speech. The Supreme Court states "when a law prohibits conduct that combines speech and non-speech elements, if there is a sufficiently important government interest in regulation, the non-speech element, this can jsutify incidental limitations on first amendment rights and freedoms." O'Brien's conviction was upheld

Weeks v. US (1914)

The Supreme Court created the excluionary rule throwing out illegally obtained evidence. however this case only impacts federal laws and courts.

Barron v. Baltimore (1833)

The Supreme Court created the precedent that the bill of Rights applied only to federal courts.

Gregg v. Georgia (1976)

The Supreme Court found that the death penalty cannot be applied to the "insane" - this ruling does not apply to those suffering from mental illness, only those who hav ebeen determined to not be able to determine right from wrong

Boy Scouts of America v. Dale (2000)

The Supreme Court ruled that hte Boy Scouts did not have to admit gay scout masters, as they were a private group and not the government.

Diversity of Citizenship

The amount being sued for must be $75,000 or more and the case must involve parties of more than one state. The plaintiff and defendants must have diversity; a case where multiple plaintiffs come from different states would not satisfy this requirement

Offer Terminated by Law

The amount of time set by the contract lapses, death or incompetence of the offeror or offeree, destruction of subject matter, subsequent illegality of the contract proposed

Appellate Jurisdiction

The authority to review a trial court case and outcome

Implied Consent

The conduct of the landowner implied that the action was okay

Griswold v. Connecticut (1965)

The constitution provides a zone of privacy under Amendment 1, 3, 4, 5, and 14

Remedy for Material Breaches

The contract can be rescinded, damages, specific performance

Conditions

The court can suspend the sentence given to a criminal if that person meets certain conditions set by the judge (ex. attending drug rehab, good behavior, getting castrated) - these conditions can only extend as long as the prison sentence would have

Roper v. Simmon (2005)

The death penalty cannot be given to someone who was under the age of 18 when the crime was committed, regardless if that person was charged as an adult or not.

When can jurisdiction over non-state residents be obtained?

The defendant gives consent, the defendant is served a complaint within the state, the defendant has the minimal contacts with the state

Nuisance Facet I

The defendant intentionally or negligently interfered with the plaintiff's use of the plaintiff's land (must be a severe disturbance beyond simple annoyance). Defendant had to cause a substantial interference with the plaintiff's interests. It is unreasonable for the plaintiff to bear this disturbance without compensation.

Defamation Facet Ia

The defendant made a statement of fact, that statement as made to a third party or was published, the statement was false, a reasonable person would find the statement harmful to someone's reputation. For public figures, defendant must be shown to have been acting with malice.

Self-Defense in Battery

The defendant must prove that they had a reasonable apprehension of imminent bodily harm AND that the defendant used reasonable counter-force to avert that harm

5th Amendment in Civil Victim and Civil Enforcement

The defendant must take the stand, as the defendant will be subpoenaed to appear - on the stand, the defendant can plead the fifth question by question for incriminating questions only - the prosecutor can use a pleading of the fifth as evidence of guilt.

Criminal Restitution

The difference between what the government and the victim get. The court may order the criminal to payback the victim. This is most ocmmon in white collar crimes like fraud or embezzlement

What must plaintiff show to prove res ipsa loquitur?

The event is of a kind that does not occur in absence of someone's negligence, the defendant had exclusive control over the instrumentality that caused the event, the plaintiff had no fault, evidence explaining the incident is more readily available to the defendant than the plaintiff (plaintiff must show that they were injured and that negligence was the only possible cause - onus is on the defendant to show how or what happened)

US v. Lopez (1995)

The federal Gun-Free School Zone act of 1990 made it illegal to carry a firearm onto a school campus. Lopez, a high school senior, was arrested for possessing a gun at his school. The Supreme Court ruled that the justification for this act - the Commerce Clause - seemed like a strained connection; how did violence connect to the regulation fo commerce? The possession of a gun was a crime, which is supposed to be regulated by the states, who possess police power. Law was overturned.

What happens if benficiary listed dies?

The gift fails --> residuary clause

1st A - Establishment Clause

The government cannot prohibit you or anyone from establishign or believing in your religion (absolute right)

1st A - Exercise Clause

The government cannot prohibit you or anyone from exercising/carrying out your religious faith (has limits) - a person's individual rights extend only as far as they do not infringe on another person's individual rights

Who makes criminal law?

The government makes criminal laws - violations of criminal laws are generally prosecuted

Declaratory Decree

The judge makes a declaration - ex. judge decides a property line

obligation

The law that makes certain agreements binding. For example, if someone was asked to bring aclohol to a party and did not, there is little recourse. However, if someone had been given $500 to purchase alcohol for a party and did not, they have violated their obligation, and recourse is available.

incorporation doctrine

The legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the Fourteenth Amendment.

Mitigation of Damages

The non-breaching party is required to mitigate the potential damage as a result of a material breach, trying to keep them as close to the original contract as possible (ex. bringing in a new contractor that has the same estimate for how much a house will cost as the original contractor or a landlord being required to try and find a new tenant to take over a vacant lease)

Abatement

The plaintiff must first go to the defendant and notify them of the nuisance. If the defendant does not resolve the nusiance, the plaintiff can fix the nuisance themselves and charge the defendant what it cost. Emergency is the only excuse for not giving prior notice to the plaintiff.

Conversion - Facet I

The plaintiff owns and has right to possess the personal property. The defendant intentionally interfered with that personal property. That interference deprived the plaintiff of possession of that personal property. That interference caused damages.

Brigham City v. Stuart (2006)

The police were called to a house party for a noise complaint. When they arrive, they claimed to see a fight going on inside. The police entered the hosue without knocking, simply yelling police as they entered. They had no warrant - the Supreme Court ruled that yelling "police" satisfies the 4th Amendment demand for a knock

Zoning

The principle method of public control over how private land is used; an exercise of state's pulice power

How would court determine undue influence?

Was the dominant party rushing the other party to consent to the contract? Did the dominant party gain undue enrichment from the contract? Was the non-dominant party isolated from other advisors at the time of the agreement? Is the contract unreasonable in the sense that results of the exchange overwhelmingly benefit (or favor) the dominant party? (ex. caregiver isolates their elderly patient and convinces them to quickly and suddenly rewrite their will to benefit the caregiver only)

How is economic duress determined?

Was there a wrongful threat or application of pressure? Was there a lack of practical alternative? Was the pressure a significant cause that induced the plaintiff to enter the contract? Did the party causing financial distress gain an advantage? (ex. construction company promised that a building would be built by Jan 1, 2000 for $5 million. however, they could not finish the project on time and demanded $1 million more to finish it. Because the owner had no other usable office space and needed the building finished, he agreed to pay the money. The owner had been under financial threat.

Negligence (Unintentional Tort)

When a person who has a duty to act responsibly acts carelessly and causes injury to another

When is a judgement terminated?

When it is paid in full or 20 years after the last payment. If a debtor dies, this debt is transferred to the estate.

When does a defendant's conduct create a relationship that imposes a duty of care to the plaintiff?

When the degree of control over the situation necessitates additional responsibility - you have no duty to save someone in peril unless you had some degree of control over the situtation - if you start to save someone though, you MUST use reasonable care under the circumstances

Wickard v. Filburn (1942)

Wickard grew wheat, which was regulated by the federal government; only os much could be grown and sold each year, with violators punished by fine. Wickard sold the amount of wheat he was legally allowed to, but grew a small surplus for his own personal use only. He is fined by the government for this surplus. Supreme Court ruled that, though one's home consumption may be negligible, if everyone acted as Wickard had, broader wheat production would be impacted. Thus, the commerce clause was violated. The law was upheld.

Conditions for Valid Will

Will must be in writing, testator must have title to the property in the will, benefactory is alive to take the gift - the heirs will not take a gift unless the gift requires, the testator is mentally competent when the will was written, witnesses were present (at least two, helps prove competency), the witnesses must be in the room, together, with the testator at the same time - a notary public must also be present ot swear everyone in, the witnesses would eb contacted if there was a will contest later on

Mislaid Property

if you intentionally placed your personal property somewhere but unintentionally leave it (meaning you did not intend to relinquish ownership) that property is mislaid - possession goes first to the owner of the land where the property was mislaid. That owner has the right to hold the property for a reasonable amount of time for the true owner. The landowner has better title rights than any other person aside from the true owner. Someone taking mislaid property makes it almost impossible to find the true owner/return it.

Circumstances of Defendant when determining if special duty of care applies:

inferior education, skills, or maturity; superior education, skills, or maturity; was a professional; was experiencing an emergency (an emergency is not a defense for inaction but it does lower the expectation of conduct)

Battery doesn't need to prove:

injury or awareness!

Original Promise

insurance contracts only (ex. a creditor is injured y the principal promisor in a car accident - the insurance company agrees orally or in writing to pay out the damages to the creditor - this payment is not contingent on the principal promisor failing to pay)

Why include a emrger clause?

it helps explain the parties' intent regarding ambiguous terms or terms with more than one meaning - outside negotiations can be used as context; also proves that prior valid agreements may be incorrectly reflected in the current agreement.

Why create a joint tenancy?

keeps land within a family as it prevents the land from being divided among spouses and other relatives

Residuary Clause

last line of the will, and it shows where failed gifts should go (like a contingency clause). (ex. a residuary clause may state that all failed gifts should be divided among all heirs)

Zoning Laws in Nuisance Tort

legislation that authorizes a particular activity in a certain area - cannot complain about what a defendant is legally allowed to do within a zoning law

Strict Constructionism

looks at the language/meaning of the Constitution only when reviewing the alw; this is exceedingly narrow. Ex.) Minnesota v. Carter (does the 4th Amendment protection against unlawful searches and seizures apply to social guests?) The 4th Amendment states that "people in their own houses" shall be free from arest without warrant. Thus, a strict constitutionalist would rule that the 4th Amendment does not apply to social guests, only people in their own homes.

Patient Protection and Affordable Care Act

mandated all American purchase medical insurance. The Supreme Court upheld the act, viewing the mandate as an issue of taxation not commerce. However, the mandate was later removed.

Count-by-Count Decision

may result in some counts being dismissed but others being litigated

International Shoe Corp v. Washington (1945)

minimal contact established as a way to protect defendants due process and stop them from being draffed all over the country - by "purposefully availing" themself to the benfits of the state, the defnedant also availed themself to the reach of the court system. The court determines what constitues minimal contact

Fraudulent Misrepresentation

misrepresentation fo a material fact that was made with scienter and could be justifiably relied upon and caused injury

Fraud - Facet I

misrepresentation of a material fact; scienter - proven that defendant had knowledge of the falsity of the stattement and the defendant made the statement with the intent to deceive; reasonable reliance by the plaintiff; injury to the plaintiff; fraud is the causation fo the injury

Punitive Damages

monetary amounts awarded to punish wrongful acts and deter future action

Compensatory Damages

monetary amounts that compensate the victim for loss - must be proven exactly, and you only get one chance to sue for compensatory damages

Parol Evidence Rule

when parties enter a written contract that they intend to be the complete integration (final agreement), a court will not admit: evidence of prior negotiations, any prior oral or written agreements, any contemporaraneous agreements or statements if that evidence contradicts or varies the contract (ex. a lease says no pets - the landlord orally agrees to allow a tenant to have a cat, a new landlord takes over and evicts the previous tenant for having a cat - eviction will stand as the agreement about the cat was made orally outside the contract)

legal benefit

when the promisor or promisee obtains something of value which they had no prior right to obtain

Difference between duress and undue influence?

whether the influenced party is aware of the influence - under duress, the party knows they are being compelled against their will; under undue influence, the party is unaware that they are being compelled against their will

Objective Intent

would a reasonable offeree be justified in assuming from the offeror's words or conduct that they chose to make a binding promise? i.e. a man writes an agreement to sell his farm on a cocktail napkin but later attempts to rescind that offer - his writing of a detailed, complex agreement would reasonably show intent to sell; the offer must remain valid and open

Common Law/Case Law/Judge-made Law

written in response ot a specific case that is brought before the court

Life Estate

you have every possible right but only for a measured life - ex. a man with children remarries, he wants his property to go to his children eventually, not his new wife's. The man gives his wife a life estate - only granting ownership during her lifetime. This greatly limits her ability to use the land (no one would buy property for only a specific person's lifetime, etc) and it forbids her from committing waste (destroying the property or lessening its value). Life states come with future interests.