Study Guide Part 1 (M:1-35)

Federal and State Law (M2)

"Another way of subdividing all law in this country is on the basis of the governmental unit from which it arises. On this basis, all law may be said to be either federal law or state law." *1. FEDERAL LAW is created by the national government, that is, by the government of the United States. NOTE: The right to free speech is federal. EXAMPLE: because it is found in the 1st Amendment to the United States Constitution. When Congress passes a statute like the Civil Rights Act of 1964, it is also a federal law and it applies throughout the country. NOTE: Article III, Section 1 of the U.S. Constitution provides that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." EXAMPLE: The numerous federal courts that exist today by virtue of this section can, at the risk of oversimplification, be placed into three main categories similar to those of the state courts: (1) specialized trial courts, (2) U.S. district courts, and (3) appellate courts. A: SPECIALIZED U.S Courts - NOTE: Some federal courts have very specialized subject matter jurisdiction. Example: U.S. Tax Court, which hears only federal tax cases, and the U.S. Court of Federal Claims, which hears only claims against the U.S. government. NOTE: These and other specialized federal courts are somewhat analogous to the courts of limited jurisdiction in state court systems. B: U.S DISTRICT Courts - NOTE: The basic trial courts within the federal system are the U.S. district courts. Most federal cases originate in these courts. (Congress has created 94 judicial districts, each of which covers all or part of a state or a U.S. territory.) Example: Federal districts are defined by state lines, with each state having at least one district. More populous states have two, three, or four U.S. districts. U.S. territories such as Puerto Rico, Guam, and the Virgin Islands each have one federal district court, as does the District of Columbia. NOTE: Although the federal district courts are the most important courts in the federal system, they are not really courts of general jurisdiction in the same sense as are the general state trial courts Example: Federal courts, however, are part of the federal government, and the federal government is a government of limited powers under our Constitution. C: APPELLATE Courts - NOTE: There are 13 U.S. courts of appeal. Eleven of these, located in "circuits" across the country, have jurisdiction to hear appeals from the district courts located in the states within their respective boundaries. Each of these 11 appellate courts also hears appeals from the rulings of federal administrative agencies. (The jurisdiction of the remaining two appellate courts is somewhat different from that of the others.) Example: The U.S. Court of Appeals for the District of Columbia hears appeals from the federal district court located in the District, as well as appeals from rulings of federal administrative agencies. The other appellate court is the U.S. Court of Appeals for the Federal Circuit, which hears all appeals from patent applicants whose applications were rejected by the U.S. Patent & Trademark Office, all appeals from patent infringement cases from U.S. District Courts, and appeals from the International Trade Commission and the federal Merit Systems Protection Board. NOTE: Appeals from judgments of the U.S. courts of appeal, like appeals from judgments of the state supreme courts that present federal questions, can be taken to the U.S. Supreme Court. (In most cases, these appeals are not a matter of fact.) Example: Rather, the parties who seek review must petition the Supreme Court for a writ of certiorari, and the Court has absolute discretion in deciding which of these cases are sufficiently important to warrant the granting of certiorari. NOTE: A writ of certiorari is an order of a higher court requiring a lower court to send to it the documentary record of the trial. (In a typical year the Supreme Court hears only about 85 of the thousands of appeals that are made.) *2. STATE LAW NOTE: Although there are some very important areas of federal law, the great bulk of our law is created at the state level and is state law EXAMPLE: Texas Legislature creates many statutes that do not apply in Missouri or New York, but which do apply in Texas. California courts create rules that do not govern contracts in Nebraska, but which do govern contracts in California. NOTE: To a large degree, individual states like Texas and Florida decide on the rules that will apply within their own borders. Example: Although court systems vary somewhat from state to state, most state courts fall into three general categories. From lowest to highest, they are (1) courts of limited jurisdiction, (2) general trial courts, and (3) appellate courts. A: Very low level state courts: Courts of Limited Jurisdiction - NOTE: Every state has trial courts that are limited as to the kinds of cases they can hear and are called courts of limited jurisdiction, which means that they have limited authority and can hear only certain specific types of cases. Example: justice of the peace courts, municipal courts, traffic courts, and domestic relations courts (handling divorce, custody, and child support cases). Because there are so many of them, these courts hear most cases that come to trial. B: Low level state courts: General Trial Courts - NOTE: The most important cases involving state law, and the ones we will be most concerned with hereafter, commence in the general trial courts. These are courts of "general jurisdiction"; they are empowered to hear all cases except those expressly assigned by statute to the courts of limited jurisdiction. EXAMPLE: Virtually all important cases involving contract law, criminal law, and corporation law for example, originate in the general trial courts. NOTE: In most states these courts are called either district courts or superior courts. Whatever the specific name, one or more such courts normally exist in every county of every state. C: High level state courts: Appellate Courts - NOTE: All states have one or more appellate courts, which hear appeals from judgments entered by the lower courts. EXAMPLE: In some states there is only one such court, usually but not always called the supreme court, but in the more populous states a layer of one or more intermediate appellate courts is interposed between the trial courts and the supreme court. NOTE: Appellate courts decide legal questions; they do not hear testimony of witnesses or otherwise entertain new evidence. EXAMPLE Question 3: Ron loses his discrimination claim in federal district court. If he wishes, he can appeal his case to a ________________ court. If he loses there, he can seek to have his case reviewed by ________________. A. a general trial court; his state's supreme court B. a general trial court; the U.S. Supreme Court C. A U.S. Court of Appeals; his state's supreme court D. A U.S. Court of Appeals; the U.S. Supreme Court NOTE: Appeals from a federal district court would proceed to a federal appellate court, and eventually perhaps to the U.S. Supreme Court, although the Supreme Court grants only a relatively small percentage of requests for writs of certiorari. (D) Example Question 4: Consider Abner v. Doubleday, a case that will be heard by a U.S. Court of Appeals. Which of the following can you say is definitely true? A. Abner was the plaintiff in the original lawsuit brought to district court. B. Abner is bringing the appeal to the U.S. Court of Appeals. C. Abner was the defendant in the original lawsuit brought to district court. D. Both A and B are definitely true. E. None of the above are definitely true. NOTE: Abner might have been either the plaintiff or defendant originally. But since Abner is listed first for the appellate case, Abner is definitely the side bringing the appeal. (B)

GONZALES v. RAICH U.S. Supreme Court, 545 U.S. 1 (2005) (M19)

"Commerce Clause" California authorizes the use of marijuana for medicinal purposes. The question presented in this case is whether the power vested in Congress by the Commerce Clause includes the power to prohibit the local cultivation and use of marijuana if it is in compliance with California law. Respondents Raich and Monson are California residents who suffer from a variety of medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of California's Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause her excruciating pain and could very well prove fatal. Respondent Monson cultivates her own marijuana, but Raich is unable to cultivate her own, and thus relies on two caregivers to provide her with locally grown marijuana at no charge. After federal agents raided Monson's house and destroyed her plants, respondents sued the U.S. Attorney General Gonzales and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. The district court ruled against respondents and the Ninth Circuit reversed. Attorney General Gonzales appealed. (Re-Cap) In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce . . . among the several States." That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme. We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed [as a prohibited substance]. But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. Respondents' submission, if accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction. The Ninth Circuit's decision is vacated and remanded.

PODIAS V. MAIRS 926 A.2d 859 (N.J.App. 2007) - Liability (M3)

"Liability" Defendants Swanson and Newell were asleep in their friend Mairs' car. Mairs was driving, and all three had been drinking beer. Around 2:00 a.m., Mairs lost control of the car and struck a motorcycle driven by Antonios Podias. Swanson, Newell, and Mairs exited the car and huddled around it. Swanson saw Podias lying in the roadway and because he saw no movement and heard no sound, told the others that he thought Mairs had killed the cyclist. At that time, there were no other cars on the road. Even though all three had cell phones, no one called for assistance. Instead, they argued about whether the car had collided with the motorcycle. Within minutes of the accident, Mairs called his girlfriend on Newell's cell phone. Swanson made 17 calls and Newell 26 calls over the next minutes, though not one was an emergency assistance call. Swanson later said, "I didn't feel responsible to call the police." And Newell said that he "didn't want to get in trouble." After about five or ten minutes, the trio all decided to get back in the car and leave the scene. Swanson instructed Mairs "not to bring up his name or involve him in what occurred" and "don't get us involved, we weren't there." The three then drove south for a short distance until Mairs' car broke down. Mairs pulled over and waited in the bushes for his girlfriend to arrive, while Swanson and Newell ran off into the woods. Before they deserted him, Swanson again reminded Mairs that "there was no need to get [Swanson and Newell] in trouble." Mairs thought Swanson was "just scared" and that both defendants were concerned about Mairs "drinking and driving." Meanwhile, another car ran over Podias in the dark and he died as a result of injuries sustained in these accidents. When State Police located Mairs hours after the accident, he said that he was alone in the car at the time of the accident, but several months later admitted that Swanson and Newell were passengers in the car at the time of the accident and that he had lied to the police because his friends had asked him to. Plaintiff Sevasti Podias, individually and on behalf of decedent's estate, sued several defendants for negligence. All of the defendants except for Swanson and Newell, either settled or were found liable after a jury trial. Prior to trial, the trial judge granted Swanson's and Newell's motion for summary judgment, finding that they had no legal duty to volunteer emergency assistance to one whose injury they neither caused nor substantially assisted another in bringing about. Plaintiff appealed. "RECAP" First off, who was being sued? The passengers in a car involved in an accident. The driver's role in this fatality was clear, but this case addresses whether legal responsibility can be stretched to cover the passengers as well. Now, the lower court granted a summary judgment and dismissed the plaintiff's case. The appellate (higher) court disagreed, and Judge Parillo cited several reasons for why liability might extend to the passengers in the car. The case was remanded, or sent back to the lower court for further proceedings. Now, based on the case report above, can we tell who ultimately won the case? That is, can we tell whether the passengers are in fact legally liable for the fatality? No. Since the case was remanded, unless the case settles or the plaintiff gives up on their case, the plaintiff will get his chance to present arguments to a jury. The jury might or might not find in plaintiff's favor. The plaintiff has essentially won the right to have his day in court.

Valid Contracts - Three Additional Issues (M34)

(Rights of Third Parties) It is not incorrect to imagine a contract as a "private law" that creates rights and obligations between the parties. *THIRD PARTIES* - those outside of contracts. NOTE: Outsiders usually cannot go to court to enforce deals that they did not make, even if they stand to gain something if the contract is completed. Example: Imagine that my neighbor signs a contract with a Porsche dealer to buy a new 911 Turbo. I think to myself, "Excellent! I would love to look out my window and see a new Porsche, and a high end car on the street might even increase property values around here." Now imagine that the dealer breaks the agreement and sells the car to someone else. My neighbor has contractual rights to sue the dealer if he wishes *INCIDENTAL BENEFICIARY* - ordinary third party. NOTE: there are two specific types of third parties that do have rights to enforce someone else's contract. In both cases, the parties who make a contract intend to benefit the third party. 1. *CREDITOR BENEFICIARIES* - When a contract is made between two parties for the express benefit of a third person, if he or she had earlier furnished consideration to one of the contracting parties. Example: A owes X $500. A later sells a piano to B, on the understanding that B, in return, is to pay off A's indebtedness to X. NOTE: Once A has delivered the piano, X is entitled to recover the $500 from B—by lawsuit, if necessary *2. *DONEE BENEFICIARIES* - Where a contract is made for the benefit of a third person who has not given consideration to either contracting party, of the contract. Example: Al insures his life with an insurance company, and if the policy expressly designates Carol as the beneficiary of the proceeds of that policy, Carol is a donee beneficiary because Al has made the contract specifically for her benefit NOTE: If Al dies, Carol can enforce the contract against the insurance company. Learning Example: A fast food restaurant in a college town would benefit from a contract between a construction firm and the university calling for the construction of a four-level parking facility on campus property just across the street from the restaurant. The builder breaches the contract with the university by refusing to go ahead with the project, and the university looks like it may scrap the plans for the parking garage altogether. Can the owner of the restaurant sue to enforce the construction contract? A. Yes, because it is a creditor beneficiary. B. Yes, because it is a donee beneficiary. C. No, because it is an incidental beneficiary. D. No, because a third party that has not signed an agreement never has rights to enforce the contract. NOTE: The restaurant owner cannot recover damages from the builder as an unintended, incidental beneficiary. The university and the construction firm did not enter into this contract with a view to benefitting the fast food restaurant. But, intended creditor and donee beneficiaries are third party "outsiders" who do have rights. (D) (Assignments and Delegations) NOTE: Often, rights and duties can be transferred to third parties. When rights are transferred, they are assigned; when duties are transferred, they are delegated. Example: Ned hires Lenny with his stunningly noisy mower (I mean honestly, did Lockheed Martin make the engine for the riding mower outside? I went to a Van Halen concert in 1987 that was louder than this, but nothing else comes to mind) to mow his lawn and agrees to pay $60, then Ned has a right to have his yard mowed and a duty to pay Lenny the $60. Lenny could assign his right to collect the $60 from Ned to Sam (to whom Lenny owes money) and he could also delegate his duty to mow Ned's lawn to Mae's Lawn Service if Lenny gets so busy that he can't himself mow all the lawns he has contracted to mow.

Legal Purpose (M31)

(The Ancillary Requirement) *ANCILLARY COVENANT* - a subsidiary or smaller part of a larger agreement. EXAMPLE: a contract calling for the sale of a business, where the contract contains a promise by the seller of the business not to engage in the same type of business in a specified geographical area for a certain length of time after the sale. *NON-ANCILLARY COVENANTS* - do not protect any existing, legally recognized interest. Example: a promise by a father to pay $10,000 for the son's promise not to engage in medical practice—are generally considered to be an unreasonable restraint of trade and are thus generally illegal and unenforceable. (Legitimate Business Interest) NOTE: nonancillary covenants not to compete generally do not protect any legitimate business interest. On the other hand, such a covenant connected to the sale of a business often does. Example: when ABC Technology, Inc. hires Trip out of a coding school and gives him six-months of additional training and exposes him to some of ABC's most important trade secrets, ABC has a reasonable interest in preventing Trip from doubling his salary by going quitting and immediately going to work for one of ABC's direct competitors. Learning Example: Ronny sells his successful seafood restaurant to Ken. Initially, Ronny plans to retire. But in the weeks after handing the restaurant over to the new owner, many of Ronny's customers reach out to him and tell him how much they miss having him around. Ronny decides to open a brand new seafood restaurant a few blocks away from the old one. This infuriates Ken, who points out that Ronny agreed to a noncompete clause in the contract that transferred ownership of the old restaurant to Ken. In it, Ronny promised not to open a competing restaurant for one year in the same town. "It's a free country," Ronny says. "It's a new business under a new name. You only bought the old one. Leave me alone." The noncompete clause _______________ the ancillary requirement. If Ken sues to enforce it, a court probably ____________ issue an injunction ordering Ronny not to open a new restaurant for a year. A. meets; will B. meets; will not C. fails to meet; will D. fails to meet; will not NOTE: The noncompete is a part of a larger agreement, so it meets the ancillary requirement. It is also limited in geographic area and for a reasonable amount of time, and as such, it is enforceable against Ronny. (A) **EXCULPATORY CLAUSES* - held to be contrary to public policy, and thus are often unenforceable against the injured party. Example: "Not liable for losses," a sign might read. "Stay back - not responsible for broken windshields!" a bumper sticker on a gravel hauling truck might say. (The Public Interest Inquiry) Little Rock & Fort Smith Ry Co. v. Eubanks, 3 S.W. 808 (1886), is instructive on the public policy aspects of exculpatory clauses. A brakeman was hired by a railroad only after he promised not to sue the company for any injuries that resulted from the company's negligence. When the company raised the clause as a defense in a negligence suit filed by the brakeman's family after his death in an accident caused by a defective switch, the court stated that parties to contracts are not allowed to make agreements that violate express provisions of the law or injuriously affect public policy. If such clauses as that signed in this case were enforced. NOTE: exculpatory clauses can only relieve defendants of liability for simple negligence. Clauses that attempt to avoid liability for acts of intentional wrongdoing or even gross negligence are not effective Learning Example: Vince goes to a baseball game. The back of his ticket says, "team is not liable for injuries in the stands." Vince has a few beers, and taunts the shortstop throughout the game. Late in the game, Vince says something very unpleasant about the shortstop's mother. The shortstop drops his glove, charges into the stands, and beats Vince senseless. When Vince gets out of the hospital, he sues the team. The team wants to escape liability, and points out that their exculpatory clause on the back of Vince's ticket covers this kind of thing. Will a court likely enforce the exculpatory clause and prevent Vince from seeking damages? A. Yes B. No NOTE: Even though this is a recreational activity, exculpatory clauses only cover negligence, and not intentional wrongful acts. Vince can go ahead with his lawsuit. (B) (Effect of Illegal Contracts) NOTE: Illegal contracts are generally void and unenforceable. This means that neither party to such a contract will be assisted by the courts in any way. NOTE: Only in exceptional situations will a court feel that the results

Acceptance and Termination (M26)

**TERMINATION* Termination of an Offer NOTE: Termination of an Offer Offers are terminated if they are revoked, rejected, or if they lapse. They also sometimes terminated by operation of law. *REVOCATION* - is a withdrawal of the offer by the offeror. An ordinary offer can be revoked at any time. (communicate your revocation to the offeree before an acceptance has occurred.) Example: If I say, "I'll sell you this pen for $1," and if you have not accepted the offer and I change my mind, I need only clearly indicate to you that the offer is no longer valid. "The deal's off," I might say, or more formally, "I revoke my offer on the pen." Either would cancel the offer. *OPTION CONTRACT* - an offeree gives money or something else of value in exchange for the offeror's promise that an offer will be kept open for a set length of time. Example: "I'll sell you this pen for $1," and you say, "Will you keep that offer open for 24 hours if I pay you five cents?" If I take the five cents, I can't revoke the offer for 24 hours. NOTE: Option contracts can be very useful when proposals are complex and a company wants time to evaluate the deal more thoroughly. *REJECTION* - occurs when the offeree notifies the offeror that he or she clearly does not intend to accept the offer. Example: "I'll sell you this pen for $1," you would reject the offer by saying, "No, thanks," or, "I'm not interested," or, more formally, "I reject that offer." *COUNTEROFFER* (specific form of rejection) - a proposal made by the offeree to the offeror that differs in any material respect from the terms of the original offer. Example: if the price stated in an offer is $500, and the offeree replies, "I'll pay $400," the original offer is ended forever. Learning Example: I say to you, "I'll sell you this pen for one dollar." "How about 50 cents?" you ask. "Well, I don't really know much about rap," I reply. "No," you say, shaking your head. "For the pen. I'll pay you 50 cents for the pen." "Ah," I say. "No, that's not enough." "OK, OK, I'll buy it for $1," you say. Do we have an accepted offer? A. Yes B. No NOTE: You have rejected my original offer (to sell the pen for $1) and have replaced it with a counteroffer (to pay $0.50), which I have rejected. It is too late for you to accept my original offer, because once terminated, an offer cannot be accepted. No deal. (B) *LAPSE OF TIME* - If not otherwise terminated, and if not accepted, an offer will terminate after the passage of a time stated in the offer as being its duration. Example: I offer to sell you my pen, "if you accept by 5:00 PM this Friday," then the offer lapses and is terminated if it has not been accepted by 5:00 this Friday. NOTE: If an offer does not state a time when it will expire, it will terminate upon the passage of a "reasonable period of time". What is reasonable depends on the circumstances of each case - a court must determine specifically how many hours, days, or weeks constitute a reasonable period. (3 factors in reaching an answer in a given case:) 1. The language used in the offer. Obviously, if an offeror states, ''I must hear from you very soon,'' the time within which the offeree must accept is somewhat shorter than if such language were not used. 2. The means of communication used by the offeror. Sending the offer by overnight express mail normally implies an urgency that the use of regular mail does not. 3. Prevailing market conditions. If the price of a commodity is fluctuating rapidly, for example, a reasonable time might elapse within hours or even minutes from the time the offer is received. When does Acceptance Take Effect? *THE MAILBOX RULE* - applies to delayed, non-real time communications about acceptances. It creates two key standards. 1. acceptances "count" as soon as they are sent so long as the offeree uses the same means to communicate (or one that is even faster or more reliable) the acceptance as the offeror used to communicate the offer. 2. rejections and revocations are not effective until received by the other side. Learning Example: June 1—Y receives an offer in the mail from X. June 2—X mails letter of revocation. June 3—Y mails acceptance at 5 p.m. June 4—Y receives the revocation. June 5—X receives Y's acceptance Do X and Y have a contract? A. Yes, as of June 3. B. Yes, as of June 5 C. No. NOTE: The contract was formed at 5 p.m. on June 3. Since a revocation is usually not effective until it is received, the letter that X mailed on June 2 had no effect until June 4, when Y received it. And by that time a contract had already been formed, because the acceptance counted as soon as it was sent. (A) NOTE: courts have generally not applied the mailbox rule to e-mails. They have held instead that an acceptance is effective not when sent but when it arrives at the recipient's e-mail server (even if it has not yet been read by the offeror).

Defenses in Negligence Cases (M14)

*Comparative Negligence System NOTE: The main concept under this kind of system is that a plaintiff's damages are reduced by his or her own degree of fault. Example: If you are slightly to blame for your own injuries, you stand to lose some of your award. If you are significantly to blame, you stand to lose most or all of your award. NOTE: There are two specific types of comparative negligence rules: "pure" and "modified". *Pure Comparative Negligence* - the plaintiff recovers the percentage of his damages that were caused by the defendant, even if plaintiff's negligence accounts for a greater portion of his harm than did the defendant's negligence. Example: if the plaintiff proves that defendant was negligent, the jury concludes that plaintiff's own negligence contributed 70% to his harm, and that the plaintiff's losses amounted to $100,000, plaintiff can recover $30,000. **Modified Comparative Negligence* - disallows the plaintiff recovering any damages if her percentage contribution to her harm passes a certain point. Example: Some states disallow a plaintiff's recovery if the plaintiff is 50% or more at fault, reasoning that if a plaintiff is as much at fault as the defendant, plaintiff should not recover anything. But if a plaintiff is 49% (or less) at fault in such as jurisdiction, he or she may recover whatever percentage of damages was caused by the defendant. NOTE: A more common type of modified comparative damage statute allows a plaintiff to recover the percentage of damages for which defendant is responsible even if plaintiff is 50% at fault, but bars recover if the plaintiff's actions caused more than 50% of the harm. Example: Under this version of modified comparative negligence rules, the plaintiff, being more than 50% at fault, would receive $0. Learning Example: After a long day of creating online course materials, Prentice and Bredeson have a fender bender in the faculty parking lot. They briefly consider fighting, but they soon realize that neither is particularly good at fighting, so they decide to sue each other instead. At trial, the evidence shows that at the time of the accident, Prentice was behind the wheel eating a cheeseburger and fiddling with his radio, and that Bredeson was talking on two cell phones. The jury concludes that the wreck was 60% Bredeson's fault and 40% Prentice's fault. Bredeson will recover 40% of his losses in which type of system? A. pure comparative negligence B. modified comparative negligence C. both A and B D. none of the above NOTE: Bredeson gets nothing in a either type of modified system, because he is over half at fault. Bredeson can recover 40% of his losses in a pure comparative system. He end up with that amount because his award will be reduced by the 60% of the blame that falls on him. (So, if the plaintiff is partly to blame for causing the problem that led to the lawsuit, a defendant may use a comparative negligence defense to reduce, or possibly eliminate, the plaintiff's award.) (A) *Statute of Limitations* - These laws set absolute deadlines for filing lawsuits. If you fail to beat the expiration date for filing, your claim will be forever barred. Example: A typical statute of limitations for tort cases is two years. And so normally, a plaintiff injured by a defendant's negligence must file suit within two years of the event that caused an injury. NOTE: Occasionally, a plaintiff can get a sort of extension on normal deadlines set by statutes of limitations. Sometimes, a plaintiff may not even know of the injury for a long time. Example: sometimes the side effects of carelessly designed drugs will not show up until years after the drugs were taken. TOLLED: Most states have created rules providing that in such a case the statute of limitations is tolled; Example: that is, it will not begin to expire until the plaintiff knows or should know of the injury. STATUES of RESPONSE: if a statute of limitations is tolled, most states have statutes of repose that bar lawsuits "no matter what" after an extended period of time. 10 years and 15 years are common absolute deadline periods of time to file tort cases, whether the injuries sustained were discoverable or not during that period Learning Example: Ann lives in a state that has a 2-year statute of limitations and a 10-year statute of repose on negligence cases. Two bad things happen to her in 2018. First, she is involved in a car accident that is entirely the fault of Donny Driver. Immediately after the wreck, she is operated on by Sally Surgeon. Sally does a careless job of reconstructing Ann's elbow, but it is done in a way that causes no initial pain and that Ann does not even notice until 2020. Now it is 2021. Ann is frustrated by her elbow pain, and decides that she wants to sue both Donny and Sally. Can her lawsuit proceed if the defendants raise the defenses described in this section? A. Yes, against Donny and Sally. B. Yes, against Donny only. C. Yes, against Sally only, D. No. NOTE: Because she was not able to detect the botched surgery until 2020, the 2-year statute of limitations was tolled and did not begin to run until 2020, so the lawsuit against Sally can proceed. It is too late to sue Donny in 2021, because it has been more than 2 years since the accident. (C)

SYSTEMS AND SOFTWARE, INC. v. BARNES Supreme Court of Vermont, 886 A.2d 762 (2005) (M32)

*Covenants not to compete* Systems & Software, Inc. (SSI), plaintiff, is engaged in the business of designing, developing, selling, and servicing software that allows utility providers to organize data regarding customer information, billing, work management, asset management, and finance and accounting. In August 2002, SSI hired Barnes as an at-will employee to become a regional vice-president of sales. At the time he began work for SSI, Barnes signed a noncompetition agreement that, among other things, prohibited him—during his employment and for six months thereafter—from becoming associated with any business that competes with SSI. In April 2004, Barnes voluntarily left his position with SSI and started a partnership with his wife called Spirit Technologies Consulting Group. Spirit Technologies' only customer was Utility Solutions, Inc., which, like SSI, provides customer-information-systems software and service to municipalities and utilities nationwide. On April 27, 2004, SSI sued Barnes and requested an injunction to enforce the parties' noncompetition agreement. The trial court held for SSI and granted an injunction that prohibited Barnes from working as a consultant or otherwise with Utility Solutions or any other direct competitor of SSI. Barnes appealed. (Re-Cap) The present case is distinguishable because, while working for SSI, Barnes acquired specific information concerning SSI's customers, products, and services that could allow him to gain an advantage in competing against SSI for new clients. That was not the situation in Forbes. Thus, the evidence supports the trial court's findings and conclusions, which, in turn, support its decision to enforce the agreement to the extent that Barnes is prohibited for a six-month period from working for Utility Solutions or any other direct competitor of SSI. According to the employment agreement, the six-month period begins only after issuance of a final unappealable judgment. Affirmed.

Legal Capacity (M28)

*VOIDABLE CONTRACTS* - the side in the weakened position - has a right to withdraw from the agreement at a later time without liability. Example: A minor dealing with an adult often has a choice - the minor can require the adult to honor the agreement, or the minor can cancel the deal. *CAPACITY* - "competence" in the eyes of the law, or the legal ability to perform a particular act. NOTE: Three categories of people may lack the capacity to form a fully binding contract, and instead usually form voidable contracts. They are minors, mentally incompetent persons, and, sometimes, intoxicated persons. (Contracts Made by Minors) *DISAFFIRMED* - may be accomplished by a clear indication of an intent to not be bound by the contract, or, if the minor simply does not perform her obligations under the contract and is sued for breach by the adult, the minor may assert her lack of legal capacity as a defense to any liability for breaching the contract. NOTE: the minor (but not by the adult) at any time before he or she becomes an adult or within a reasonable time after reaching adulthood *EXECUTED* - has been fully performed by both parties, the question is whether the minor can still disaffirm the contract and get back whatever he or she has given up when performing the contract Example: Rick, when he was 16 years old, bought a used car from Car World for $5,000. He drove the car for a year and put 15,000 miles on the odometer. He was also involved in a minor accident. At age 17, Rick wants to disaffirm the contract with Car World and get a full $5,000 refund. Car World objects. Its owner says, "Look, the car has higher miles that it did last year, and even if it wasn't damaged from the wreck, I could only sell it for $4,000. And with the damage on top of the higher miles, I can't sell it for more than $3,000. And besides, I sold this car more than a year ago - I shouldn't have to issue any refund at all." What refund should Rick receive if a court applies the rule that is applicable in most states? A. $5,000 B. $4,000 C. $3,000 D. $0 NOTE: In a most states the minor is entitled to the full amount that he or she paid without any deduction for damage or depreciation, even if a contract is fully executed. (A) *EXCEPTIONS* - minors are generally held liable for at least the reasonable value of necessaries that they have purchased **NECESSARIES* - food, lodging, clothing, and medicine. The rationale for this exception is that we want merchants to be willing to sell necessaries to minors, which they might refuse to do if the minor could rescind the contract without penalty NOTE: a minor may get out of a contract occurs in the case of entities such as common carriers such as airlines, trains, buses, ferries. Example: a 17-year-old who purchases and uses an airline ticket is not permitted to recover his or her fare, but can surrender the ticket before the flight and receive a refund. NOTE: A minor also may not get out of a military enlistment contract, and legislation in all states prevents minors from disaffirming contracts with banks or insurance companies. And finally, in most states, special rules apply to minors who misrepresent their age. (Mentally Impaired and Intoxicated Persons) NOTE: Persons with impaired mental capacity are, like minors, given substantial protection by the law insofar as their contractual obligations are concerned. **MENTAL IMPAIRMENTS* - those who are mentally handicapped, severely senile, or mentally ill. NOTE: Some mentally impaired persons are formally declared to be incompetent by a court after hearings and examination by psychologists or psychiatrists *ADJUDICATED INSANE* - any contract made by the insane person rather than by the guardian is absolutely void—that is, creates no liability whatever, even if it is never disaffirmed by the incompetent person or the guardian. *INSANE in FACT* - the person was so impaired that she was incapable of understanding the nature and effect of the particular agreement, then the contract is voidable. NOTE: A person may be senile, delusional, or otherwise impaired in some aspects of life, but if he nevertheless has a good grasp of business decisions (especially simple ones), a contract he makes may be completely valid—the critical question is always whether the person apparently understood the nature and consequences of the particular contract in question. Example: A contract made by someone who is insane in fact is treated in the same way as a contract made by a minor. *INTOXICATED* - or high. NOTE: Disaffirmance is allowed only if a person can establish that he or she was so intoxicated as not to understand the nature and effect of the agreement—the same test used in the case of those who claim that they were insane in fact. Learning Example: Consider the following people, and whether each has the ability to disaffirm a contract. -Al is insane in fact. He signed an agreement, and he understood its nature and effect. -Bob has consumed five beers. He signed an agreement, and he understood its nature and effect. Which of these people can disaffirm their contract? A. Al B. Bob C. Both Al and Bob D. Neither Al nor Bob NOTE: It is not enough to be insane in fact or intoxicated. In addition, one must be unable to understand the nature and effect of the agreement made to be able to disaffirm. (D)

Consideration (M27)

Consideration - a contract must be a bargained-for exchange. The key idea is this: something-for-nothing agreements are not typically contracts. Learning Example: A wife attacks her husband with an ax, knocking him down. As she is about to decapitate him, a bystander intervenes, catching the ax on its downward flight. The bystander's hand is badly mutilated. The husband jumps up and promises to pay the bystander $1,000 for saving his life. When he later does not pay, the bystander sues the husband. Is consideration present that supports the promise to pay the $1000? A. Yes B. No, because the bystander did not suffer a detriment C. No, because the promise to pay did not induce the detriment D. No, because the wife caused the detriment to the bystander, and she is not a party to the lawsuit. NOTE: The plaintiff has clearly suffered a detriment in that she did something that she didn't have to do (stick out her hand to save the husband's life), and it is exactly what the husband bargained for. However, the promise did not induce the detriment. That is, because the husband made his promise after the bystander acted, we cannot say that his promise caused the life-saving intervention. Thus, most courts would not enforce this promise. (C) *PEPPERCORN RULE* - Even something of very small but measurable value (like a single peppercorn, to quote the 1800s case that coined the term) can amount to consideration. Learning Example: Al contracts to sell land in Montana to Bob for $60,000. Bob later discovers - after signing the contract but before paying for the land, that the actual value of the land is only $30,000. Even though Al did not mislead Bob in any way, Bob refuses to pay, and Al sues. Can Al enforce the contract? A. No, because of the preexisting obligation rule. B. No, because of the peppercorn rule C. Yes NOTE: Bob is liable on his promise to pay $60,000, even though what he received was worth much less. Al incurred a detriment when he promised to convey the land—the surrender of his right to retain the property. The presence of this detriment constituted a consideration sufficient to support Bob's promise to pay; and Bob's claim of inadequacy is therefore of no relevance. (C) *PROMISSORY ESTOPPEL* - to enforce the promise, even if it is not supported by consideration. This is an equitable doctrine that is invoked when necessary to promote fairness. Example: Imagine that Roger saves Bill Gates' life. Later, a grateful Gates promises to pay Roger $50,000 a year for the rest of Roger's life. When the first check arrives, Roger retires. Years pass, and Gates pays every year. Roger lives on the money, and reaches an advanced age when working would be difficult or impossible. Then, Gates stops sending the checks. Roger sues. NOTE: Promises to donate large sums to charities are sometimes enforced on promissory estoppel grounds. If I pledge to give $10,000 to a charity, and if the charity counts on the money and builds it into their budget, a court may well require that I follow through and make the promised donation *STATUTES OF LIMITATIONS* - limiting the time a creditor has to sue a debtor after the debt becomes due. If the creditor waits too long before suing, the case will be dismissed as a "stale" action. NOTE: The specific periods of time vary widely among the states. A creditor might have a time limit of 2 years, or 4 years, or some other deadline altogether, depending on the circumstances. *REVIVED* - a new statute of limitations period in which to bring suit Example: A debt is also revived if a part payment is made by the debtor after the statute has run. A mere acknowledgment by the debtor that the debt exists will also revive the obligation to pay. *DISCHARGED* - A debt that has been discharged in bankruptcy is not revived by part payment or acknowledgement

Equal Protection (M20)

Discrimination issues are a significant topic of national discussion. The treatment of minorities by police officers, equal opportunity in employment, LGBT rights, and a wide variety of other issues can often dominate headlines. This module examines the relevant Constitutional ideas related to discrimination. **Equal Protection* - is to prohibit the government from making arbitrary and unreasonable distinctions among persons. Example: applying to some industries but not to others, applying to larger companies but not to smaller ones, giving benefits to older people but not to younger ones—legal questions involving the Equal Protection Clause arise frequently. *1. Rational Basis Test (LOWEST TIER) - the Supreme Court uses a fairly lax standard (regulation) for most economic and social legislation when equal protection challenges are raised. Example: The Supreme Court realizes that legislatures must make distinctions in passing such legislation. Only the poor need welfare; the rich do not. Some industries cause pollution; others do not, or at least mostly do not. Some jobs often imperil the safety of workers; others rarely do. Note: there merely has to be some legitimate government interest - not even a particularly good one - and the distinction must have some rational relationship with that interest. Example: If a state legislature has identified a problem and has made a good faith effort to solve it, the test is normally met. Only if the court can conceive of no reasonable set of facts that would justify the distinction, and if it is clearly a display of arbitrary power, will the distinction be invalidated on equal protection grounds. North Dixie Theatre, Inc. v. McCullion, 613 F. Supp. 1339 (S.D. Ohio 1985), a law required operators of flea markets who leased space to persons wishing to sell automobiles to have a type of license not required of persons who leased land to regular car dealers. The court held that the law constituted discrimination, but acceptable discrimination, because the state has a legitimate interest in preventing fraud, and it is rational to presume that fraud will be a bigger problem in a flea market than in a stationary car dealership that will probably still be there when a defrauded customer goes back to complain Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), the Supreme Court upheld a state statute that banned the retail sale of milk in nonreturnable plastic containers but permitted such sale in paperboard containers. The law did not prohibit the sale of other kinds of products in plastic containers. The state legislature had identified an environmental problem— solid waste disposal—and had made a good faith effort to solve part of the problem. The legislature wanted to encourage the development of environmentally superior containers and had chosen one major industry as a basis for its experiment. Whether the law would work as intended was not the Supreme Court's business; the distinctions in the law had a rational basis and therefore did not violate the 14th Amendment. *2. Intermediate Scrutiny (MIDDLE TIER) - This type of protection applies to gender-based distinctions Example: n such a case, the government must prove that the classification substantially advances an important government interest. This test is stricter than the rational basis test. NOTE: most gender-based distinctions will be found to violate the equal protection clause Example: Arizona v. Norris, 463 U.S. 1073 (1983), the Supreme Court struck down an Arizona state employees' retirement plan that paid women smaller monthly benefits than men. The state attempted to justify the law be citing actuarial tables which predicted that the average woman would live longer than the average man. Nonetheless, the Court deemed the plan to not substantially further an important state interest, and to be unconstitutionally unfair to the plaintiff. NOTE: Possible applications of intermediate scrutiny include laws that discriminate based on "alienage" (whether a person is a U. S. citizen or merely a legal resident), and age. Learning Example: Carol and Debby bring separate lawsuits under their 14th Amendment right to Equal Protection. Carol challenges a law that she claims makes distinctions based on gender. Debby challenges a law that she says makes distinctions based on the income level of residents of her state. If the government wishes to keep the challenged laws in place, it will have to convince the court the law is necessary to further a(n) ______________ state interest in Carol's lawsuit and a(n) ______________ state interest in Debby's lawsuit. A. rational; rational B. rational; important C. important; rational D. important; important E. compelling; important NOTE: Most social and economic regulations are subjected to the rational basis test. Laws or government policies that make distinctions based on gender must be justified as furthering important government interests when challenged in court on 14th Amendment grounds. (C) *3. Strict Scrutiny (HIGHEST TIER) - If a law or other government action discriminates against someone because of the person's ethnic group or ancestral origin (governmental distinctions based on race or national origin, and those that affect fundamental liberties.) Example: the government must demonstrate that the distinction is necessary to protect a compelling interest and that the distinction is narrowly tailored to discriminate no more than is absolutely necessary. NOTE: A governmental body can almost never meet this test, and a distinction based on race or national origin will almost always be voided by the courts when challenged. *DE FACTO* - In such a case of de facto discrimination, the courts apply the rational basis test. NOTE: The courts apply the strict scrutiny test primarily to intentional racial or national origin distinctions by the government. If a distinction or classification is neutral on its face but happens to have a disproportionate impact on a particular group, strict scrutiny usually does not apply. Example: if a public school district follows a ''neighborhood school'' concept which results in particular schools having predominantly white or predominantly African American enrollment based solely on housing patterns and not because of any discriminatory intent by the school district, there is usually no violation of the Equal Protection Clause. FOCUS ISSUE: Diversity Policies - one of the only forms of a distinction based on race that has been upheld by courts Example: programs that give limited preferences to minorities in admission to state universities or in the awarding of government contracts. The purposes of such programs include increasing diversity, helping minority-owned businesses become established by enabling them to break into government contract work, and assisting minorities in overcoming the effects of past discrimination. NOTE: Although, affirmative action has proved to be a situation in which racial or national origin distinctions have been permitted under the Equal Protection Clause, the government must meet stringent requirements to justify the policies. Example: Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), the Supreme Court struck down the minority business enterprise program for awarding city government contracts in Richmond, Virginia. Under this program the City of Richmond required that 30 percent of the dollar volume of all city construction contracts be awarded to businesses that were owned and controlled by African Americans, Hispanics, Asians, or Native Alaskans. The program was challenged by a white-owned construction company that lost a contract to install guard rails on a highway, even though its bid was slightly lower than the successful bid of its competitor. The Supreme Court held that the city did have compelling interests in remedying the effects of past discrimination and making sure that city tax money was not spent to support an industry that engaged in discriminatory practices (that is, discriminatory subcontracting). However, the Court held that for the program to be valid, the city had to produce evidence demonstrating that discrimination against minority owned businesses in the awarding of city contracts and subcontracts had occurred in the past, a reasonable estimate of the extent of that discrimination, and that it had narrowly tailored the program to take race into account to the least extent possible to serve the city's compelling interest. The city had not fulfilled these requirements. Learning Example: Carl challenges a statute under his 14th Amendment right to equal protection. He argues that the law makes distinctions based upon race, and that it must be struck down. The court will apply ______________ scrutiny to the claim. If it wishes to keep the law in place, the government will have to convince the court that it is necessary to further a(n) ______________ state interest. A. strict; compelling B. strict; important C. intermediate; compelling D. intermediate; important NOTE: When a law makes distinctions based on race, courts will apply strict scrutiny. That standard requires that states demonstrate a compelling interest if they wish to seek to have the challenged law remain in place. (A)

Free Speech (M21)

Free Speech - includes the right to express oneself, but it also includes the right to avoid expressing opinions that we do not agree with What counts as "Speech" NOTE: All methods of expression are within the scope of the Free Speech Clause, including spoken and written communications, those recorded on tape, film, and so on. 1. Symbolic Expression - expression by nonverbal means such as wearing black arm bands or picketing is protected from government suppression. The giving of money to political candidates, charitable organizations, or various other entities is even treated as a form of protected expression. NOTE: a government limitation on symbolic expression is somewhat more likely to be upheld than a limitation on verbal expression, simply because the conduct that constitutes symbolic expression is somewhat more likely to interfere substantially with some important public interest. Example: Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986), the Supreme Court overturned on free speech grounds an order of the California utility regulatory agency that had required an investor-owned utility to include in its billing envelopes a leaflet expressing the views of a consumer group with which the utility disagreed. The Court held that the agency's order unconstitutionally burdened the utility's freedom not to speak, a right that is protected because all speech inherently involves choices of what to say and what to leave unsaid. And in Janus v. American Federation of State, County, and Municipal Employees, ___ U.S. ___ (2018), the Supreme Court held that public-sector unions cannot require employees who choose not to join the union to involuntarily pay fees to support the union's collective bargaining activities because this forces them to "mouth support for views they may find objectionable." *UNPROTECTED FREE SPEECH* 1. Obscenity - Companies that sell extreme forms of pornography cannot expect First Amendment free speech protection. 2. Defamation - Companies or individuals who communicate lies are potentially liable in damages to the person whose reputation is injured. 3. FIghting Words - threats, epithets, false alarms, and the like, which by their nature are likely to lead to violence and significant risks of physical injuries to people. NOTE: Police can often arrest individuals who are trying to incite others to fight or panic without violating the First Amendment. Example: "You can't shout 'fire!' in a crowded theater" when there is no fire. Similarly, you can't try to start a riot by shouting things to a crowd that are likely to cause people to attack you or each other and then expect free speech protection. Learning Example: Ann, Bob, and Carol are involved in a pro-life organization. Ann and Bob often carry signs in a picket line in a park near an abortion clinic. Ann's condemns abortions in a general way. Bob's claims that a doctor who works at the clinic across the street does not have a medical license, and the claim is untrue. Carol hands out pro-life leaflets to coworkers at a corporation where she works, but her boss asks her to stop. Which of the three have engaged in protected free speech? A. Ann B. Bob C. Carol D. Ann and Bob E. Ann and Carol NOTE: Ann has a right to voice her opinion. Bob, by engaging in defamation, is not protected. Carol is not protected in her situation because she is working at a private company, and not for the government. (A) *CORPORATE SPEECH* - has informational value—it contributes to the public debate on important issues. NOTE: Until the mid-1970s, the general assumption was that commercial expression was not protected speech. However, the Supreme Court extended free speech protection to advertising in Virginia Board of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748 (1976) Example: the Court struck down a state law that banned the advertising of prices for prescription drugs. Prescription drug consumers in the Virginia Pharmacy case could not learn, before the advertising ban was struck down, that price variations of up to 600 percent existed among competing pharmacies. NOTE: Commercial speech is protected only if it relates to a lawful activity and if it is not misleading. Example: First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme Court struck down a state statute that prohibited expenditures by business corporations for the purpose of influencing the vote on state referendum proposals unless a particular proposal ''materially affected'' the business or property of the corporation. The law was passed to silence the voice of corporations in the public debate over an upcoming referendum concerning a personal income tax. Because the referendum did not deal with a corporate income tax, it did not materially affect the business or property of corporations; thus the statute prohibited corporations from issuing press releases, publishing advocacy advertisements, or otherwise speaking out on the personal income tax issue. The First National Bank of Boston wished to speak out because it felt that a personal income tax would harm the overall economic climate of the state. In overturning the law, the Supreme Court noted that "the inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Learning Example: Alpha Company would like to give $10,000 to be used to fund ads that will seek to help elect Senator Smith. Alpha also runs many kinds of advertisements on TV and the internet, and hopes to be allowed to continue to do so without restriction. The ___________________ is/are protected as free speech. A. political donation B. advertisements C. political donation and advertisements NOTE: Political speech by corporations and truthful commercial speech by corporations each receive First Amendment protection. (C)

Contracts (M23)

People make promises all the time. Ethically speaking, people should live up to their promises whenever possible. But legally speaking, it is often possible to break an agreement without consequences, because only some promises amount to contracts. *CONTRACTS* - nothing more or less than a legally enforceable agreement. If a person breaks a "regular promise," courts will not be interested in requiring performance. *SPECIFIC PERFORMANCE* - ordering the defendant to actually perform the terms of the contract. 1. Unilateral and Bilateral Contacts A: Bilateral Contract- consisting of ''a promise for a promise,'' Example: When a manufacturer enters into a contract with a supplier, calling for the supplier to deliver 10,000 steel wheels in September at a specified price, each party has promised the other to perform one or more acts at a later time. Bilateral Offer - proposals, or offers, that happen before a contract is fully made. NOTE: As a quick aside, an offeror is the person making a definite proposal, and an offeree is one to whom it is made. Bilateral Offer and Contract Example: if the New York Yankees (offerors) send a contract to a third baseman (offeree) in November offering him $8,000,000 for the coming season, it is a bilateral offer - the team is seeking a promise to play in exchange for its promise to pay the money. If the player accepts the offer signing and returning it, a bilateral contract has been formed. B: Unilateral Offer and Contract - a unilateral offer would be a promise by a TV station to pay $5000 to the first person who brings to its studios any piece of a meteor which has recently fallen to earth. NOTE: This offer can be accepted only by the actual physical production of a portion of the meteor - promising to go out and look around does not form a contract or obligate the station to pay the money. If someone does turn up with an actual piece of the meteor, then a unilateral contract is formed and the finder gets the cash. Learning Example: Jed promises to move his neighbor's furniture to a new apartment next Saturday, and the neighbor agrees to pay $300 for Jed's work. What kind of contract does Jed have with the neighbor? A. unilateral B. bilateral NOTE: The two parties have exchanged promises, and so like most contracts, this one is bilateral. The parties intend to be bound at the time they exchange the promises. (B) *Valid, Void, and Voidable Contracts* Valid - one in which all of the required elements are present. As a result, it is enforceable against both parties Voidable - one of the parties to a contract has the legal right to withdraw from it at a later time without liability. (A voidable contract might end up being enforced by a court) Example: If a child makes a contract with an adult, then the child has a choice. She can enforce the deal if she wishes, but she can also choose to cancel the agreement with no negative consequences. Void - contracts are those which, so far as the law is concerned, never existed at all. NOTE: Contracts are sometimes void because one of the parties is wholly incompetent at the time of contracting. Example: If someone takes advantage of an Alzheimer's patient and tricks him into agreeing to sell his Rolex for $10, a void contract has been formed. NOTE: a void contract is never enforced. (Agreements surrounding illegal things like cocaine are also void - no one has any rights to go to court to enforce an agreement to sell illegal drugs.) *UNENFORCEABLE CONTRACT* - was valid at the time it was made but is later rendered unenforceable because of the application of some special rule of law. Example: Ron and Doug made a contract in 1995 for something minor, and then forgot about the whole thing. Now, decades later, Ron wants to enforce the deal. The agreement would not be unenforceable. NOTE: Another way in which an enforceable contract might become unenforceable is if Doug takes bankruptcy and the bankruptcy court discharges him from performing the contract. (Additional Pairs of Terms) 1. Express Contract - the parties involved have fully and specifically stated the terms of the deal. Example: Joe and Sam put their agreement in writing and sign it, that would be an example of an express contract 2. Implied Contract - are sometimes inferred by courts after examining the conduct of the parties. Example: Joe walks into Sam's convenience store when Sam is busy, picks up a candy bar, shows it to Sam and places the purchase price on the counter and walks out the door after Sam nods back, an implied contract exists even though neither Joe nor Sam spoke a word. 3. Executory Contract - until both parties have fully performed their obligations. (In the process of being performed) Example: If you and I have signed a contract that calls on me to sell you my car for $5,000, we have an executory contract. 4. Executed Contract - When both sides have completed their part of the bargain Example: If you bring me the $5,000, I give you the keys and title to my car, and you drive away in it, the contract is now executed. 5. Negotiated Contracts - The terms of many contracts are agreed upon only after a certain amount of bargaining takes place between the parties. 6. Contracts of Adhesion - are formed where one side—usually one having greatly superior bargaining power relative to the other—prepares the terms of a proposed contract and presents it to the other party on a take-it-or-leave-it basis. Example: Common examples are apartment leases, hospital admission forms, and sales contracts from new car dealers. (Common Law and Uniform Commercial Code Contracts) 1. Common Law - principles that courts have established one case at a time through long decades and centuries. NOTE: These rules are used to decide everything that matters in many contracts lawsuits. *2. Uniform Commercial Code - The UCC was written in the 1950s by a group of legal scholars and experts. NOTE: The portion on the Uniform Commercial Code that we will be working with governs contracts that involve a sale of goods. *GOODS* - tangible, movable physical objects. Example: a car is a good; a patent is not a good because it is not tangible. A laptop is a good; a house is not a good because it is not movable. In short, goods are "things". NOTE: common law rules are usually quite similar to UCC rules. Normally, it does not make a great deal of difference which body of law applies. However, there are some situations in which the bodies of law don't match up, and it is those circumstances that we will highlight from time to time as we cover the contracts material. If we say something like, "This is one of the times in which it matters whether you are selling goods or services," it will be because the UCC and the common law treat the issue at hand differently. Learning Example: Billy, age 10, walks into a baseball card shop and tells the owner that he has an Aaron Judge rookie card. The owner offers to pay Billy $25 for the card if he brings it by tomorrow. Billy says, "It's a deal," shakes the owner's hand, and leaves. Select the correct descriptive terms from the pairs below that apply to this deal. 1. unilateral -or- bilateral 2. valid -or- voidable -or- void 3. express -or- implied 4. executed -or- executory 5. governed by common law principles -or- governed by UCC principles NOTE: This is a bilateral (promise for a promise), voidable (because Billy is a minor and can back out of it), express (stated), executory (unfinished) contract governed by UCC principles (because a baseball card is a thing or a "good"). (The required characteristics of a valid contract are:) 1. It must start with a valid offer. 2. The offer must be accepted. 3. Consideration must be present. 4. All sides must have the capacity to make a contract. 5. All sides must assent to the agreement. 6. The agreement must have a legal purpose. 7. And sometimes, but by no means always, the agreement must be in writing.

Negligence Elements Part 2 (M13)

This module we will examine the final three: --> (3) that the defendant was a factual cause of an injury --> (4) that the defendant's breach proximately caused the injury --> (5) that the plaintiff suffered a specific injury. *1. Causation in Fact - an actual cause-and-effect relationship, and is often called "but-for" causation. That is, a jury can conclude from the evidence that "but for" the defendant's negligent act or failure to act, the plaintiff's harm would not have occurred. Learning Example: Imagine that Peter, who works for Pepsi, puts 200 cans of Pepsi into an empty vending machine on Monday morning. Later that day, Karl Klutz buys a Pepsi from the same machine and takes it out onto a second floor balcony. Karl sees Vince Victim down below, waves to him, and fumbles the Pepsi. The can describes a perfect arc and conks Vince on the head, knocking him unconscious. When he comes to, Vince feels like filing a lawsuit. Whose actions are causes in fact of this injury? A. Peter B. Karl C. Both A and B D. None of the above NOTE: Both Peter's and Karl's actions are causes in fact. If you eliminate either's actions, the accident doesn't happen. But as we will see shortly, it is very unlikely that Peter will be held responsible for Vince's injuries. (B) NOTE: causation in fact by itself is insufficient to impose liability on a careless defendant. To win a negligence case, a plaintiff must demonstrate that the defendant's actions or omissions were not only a cause in fact of an injury or loss, but also a proximate cause. *2. Proximate Cause - reasonable foreseeability Example: if a jury determines that "you should have foreseen that," "you should have known better," and perhaps "you should have been more careful to avoid this kind of problem," you are often in much worse shape as a defendant. NOTE: For a plaintiff to prove proximate causation, she must prove that defendant's harm was a reasonably foreseeable result of defendant's negligence. Example: Palsgraf v. Long Island R.R., 163 N.E. 99 (1928). In Palsgraf, a ticketed passenger was running on a train platform and trying to board a train that had just begun to move. A guard on the train and another railroad company employee on the platform tried to assist the passenger, the guard by grabbing his hand and the other employee by giving him a push. This caused a package the passenger was holding to fall under the train wheels. As it turned out, the passenger's package contained powerful fireworks that exploded beneath the wheels of the train. The force of the explosion shook the platform and tipped over a large cargo scale that sat at the far end of the train platform. Mrs. Palsgraf was standing near the scale, and she was injured when the scale fell on her. NOTE: So, was the railway company liable Mrs. Palsgraf? No. She lost her negligence case against the railroad because the court concluded that the harm to her was not a reasonably foreseeable consequence of the railroad employees' negligence. A: There were a number links in the chain of causal events between the negligence and the harm B: the nature of her harm and its most direct cause (scales falling) were extremely different from the nature of the negligent conduct by the employees C: relatedly, there was no logical connection between two railroad employees' helping a passenger board a moving train and Mrs. Palgraf then being injured by a falling cargo scale. Learning Example: Imagine that Peter, who works for Pepsi, puts 200 cans of Pepsi into an empty vending machine on Monday morning. Later that day, Karl Klutz buys a Pepsi from the same machine and takes it out onto a second floor balcony. Karl sees Vince Victim down below, waves to him, and fumbles the Pepsi. The can describes a perfect arc and conks Vince on the head, knocking him unconscious. When he comes to, Vince feels like filing a lawsuit. Whose actions are a proximate cause of this injury? A. Peter B. Karl C. Both A and B D. None of the above NOTE: Only Karl's action is a proximate cause. Peter is sort of involved in all of this, in the sense that, if he had not restocked the empty machine, this accident might not have happened. But he would not be considered a proximate cause, because a jury would not say, "Ah, you should have known better - you should have foreseen that this kind of thing would happen if you did your job and put cans in the machine." Karl's actions would be a proximate cause, because a jury would say that he should have foreseen that if he dropped the can from a high place he might injure someone, and that he should have been more careful to hold onto it. (B) NOTE: it is important to note that a plaintiff is not required to show that a defendant should have foreseen the exact type or severity of harm that plaintiff ended up suffering, but only that defendant should have foreseen that his or her conduct was likely to lead to the general kind of harm that plaintiff incurred 3. Injury - The key idea for this final element is that you can't win a negligence case if someone almost harms you, or nearly causes your property to be damaged. You must show that you have suffered an actual injury or actual loss in order to win the case.

Negligence Elements Part 1 (M12)

This module will examine the first two: --> (1) that the defendant owed the plaintiff a duty --> (2) that the defendant breached that duty *1. Duty of Care: We each owe every person we can reasonably foresee might be injured by our carelessness Example: If we drive down the street pedestrians and other drivers are within the class of foreseeable people we might injure if we drive carelessly. NOTE: We do not owe a legal duty of care to those people who might claim to be injured due to our actions, but who are not reasonably foreseeable to us. Example: Burke v. Pan American World Airways, Inc., 484 F.Supp. 850 (S.D.N.Y. 1980), the plaintiff sued the defendants allegedly responsible for a terrible plane collision in the Canary Islands. She claimed that although she was in California at the time of the crash, she felt as though she were being "split in two" and felt an emptiness "like a black hole" at the exact instant of the crash. The plaintiff claimed that in that instant she knew that something terrible had happened to her identical twin sister, who was, in fact, killed in the collision. The plaintiff was prepared to try to document in a trial the phenomenon of "extrasensory empathy" between some pairs of identical twins. NOTE: people owe others a duty to act reasonably in the circumstances. When you interact with others, you generally need not behave perfectly, but only reasonably. **Special Circumstances: Duty of Care* There are some circumstances in which people owe others a special, or at least different, duty of care that the usual obligation to act reasonably in the circumstances. Three of them are: A: Professionals - When you are acting in a professional capacity (that is, doing a job for money or other compensation) you have a higher than usual duty of care to clients and customers. You have an obligation to act as a reasonable person in your profession. Example: If you are a tax accountant and are completing a tax return for a client, you must act as a reasonable tax accountant NOTE: Perfection is not demanded, but you are required to prepare a return with the skill expected of a reasonable person in your profession. B: Children - Children, and especially younger children, have a lower than usual duty of care than do adults. A person under 18 has only a duty to act as a reasonable child of his or her own age. Example: a 17-year-old might be expected to be nearly as careful as an adult. But a 7- year-old would not be expected to be very reasonable at all. C: Owners and occupiers of land - Courts have long heard cases that ask them to determine the extent of the duty owed by owners or occupiers (tenants, for example) of land toward those who come upon the property they control Trespasser: (one who enters the land with no right to do so) NOTE: landowners have no obligation to trespassers other than to not injure them intentionally. Example: If a trespasser breaks an ankle while trespassing in your back yard, you do not owe him any damages even if you were careless in not filling in the hole that he stepped in. Licensee: (one who has a right to come onto the property for self-benefit, such as a door-to-door salesman or a neighbor dropping in uninvited) NOTE: Licensees may sue for injuries caused by hidden dangers they should have been warned about because the landowner knew about the danger. Example: If you have actual knowledge of a nonobvious danger in your apartment, or in your back yard, you have a duty to either remedy the danger or to warn your guests about it. Invitee: (one invited by the owner or occupier or who enters for the benefit of the owner or occupier, such as a customer at a store) NOTE: Invitees may sue for injuries related to all reasonably discoverable hidden dangers. Example: If you have a gym, you need to do regular inspections of your weights and equipment to meet your enhanced legal duty to customers who work out. If a pin shears or a cable snaps, and if a weight falls on a customer's foot, you will be found responsible for the injury even if you did not have actual knowledge of the soon-to-malfunction equipment if you could have discovered the impending problem with a reasonable inspection. Learning Example: Roger shows up at his friend Fred's house. Fred did not invite him over, but Fred is glad to see him, and the two sit down to watch a baseball game. Later, Roger uses a bathroom at Fred's house, and he receives an electrical shock from a light switch. Fred knew that the switch was badly wired, because his cousin received a shock from the same switch last week. Did Fred have a legal duty to warn Roger about the faulty switch? A. Yes B. No NOTE: Roger is a licensee. As such, Fred is obligated to warn Roger about hidden dangers on his property if Fred has actual knowledge of them. (A) Negligence Per Se: a defendant has automatically breached his duty of care. NOTE: The breach of law means that the defendant is automatically deemed to have acted unreasonably Learning Example: Lauren is distracted by a bee in her car, and while paying attention to the bee, she fails to notice Ron's car until it is too late to avoid a collision. Has Lauren been negligent per se? A. Yes B. No NOTE: Lauren has not violated a law, like a posted speed limit. She may be held liable for causing the accident, but she has not been negligent per se (B)

Common Law & Statutory Law (M1)

*2. STATUTORY LAW (Criminal law and tax law are examples of bodies of law that are primarily statutory in nature) The term statutory law, by contrast, is generally used to refer to legal rules that have been formally adopted by legislative bodies rather than by the courts. NOTE: A legislative body is comprised of elected representatives. Example: voters in all 50 states go to the ballot box every other November and vote for the candidates they wish to send to Washington, D.C., to represent them in Congress. NOTE: Statutory law is frequently referred to as "written law" because its exact wording is set forth in writing—although the precise meaning is still subject to interpretation by the courts. Example Question 1: In 1890, Congress passed the Sherman Antitrust Act. In 2008, Congress passed the Genetic Information Nondiscrimination Act. Which of these is/are a statute? A. The Sherman Antitrust Act B. The Genetic Information Nondiscrimination Act C. Both A and B D. None of the above NOTE: Written laws passed by legislative bodies like Congress are statutes (C)

Writing Requirement - The Statute of Fraud (M33)

(The Statute of frauds) *PERJURED TESTIMONY* - false testimony given under oath. Example: Paul claims that Donna breached a particular verbal contract, a contract that Donna denied having ever made. If Paul could induce witnesses (perhaps by paying them) to falsely testify that they heard Donna agree to the alleged contract, and if Donna could neither refute such testimony by witnesses of her own nor otherwise prove that Paul's witnesses were lying, a judgment would be granted in favor of Paul. **STATUE OF FRAUD* - certain types of contracts to be in writing in order to be enforceable. NOTE: the statute of frauds sometimes allows some parties to evade obligations that they have willingly undertaken. Indeed, it appears that it is used more often today for enabling a defendant to escape a legitimate contractual obligation than for defeating a plaintiff's fabricated lawsuit. But for better or worse, the rule remains. (Contracts that Must Be in Writing) 1.Real Estate Contracts *MORTGAGE* - a transfer of an interest in land by a borrower to a creditor as security for a debt, and is an interest that is contingent upon the debtor's default 2. Contracts Not Performable Within One Year Learning Example: A promises on June 1, 2020, to perform for two-hours at a wedding reception on August 12, 2021. Does this contract need to be in writing to satisfy the Statute of Frauds? A. Yes B. No NOTE: This contract must be in writing to be enforceable. Even though the performance itself will take only two hours, by the contract's terms that performance must occur more than one year after the contract was made. (A) (Promise to Pay the Debt of Another) NOTE: There are three standard elements of a *guaranty contract*, which is the specific kind of agreement that involves the debts of others and must be written. 1. a guarantor (like Tom's millionaire uncle, in our scenario above) promises to pay the debtor's (Tom's) obligation if the debtor does not. In other words, guaranty contracts occur in situations of "secondary liability." 2. a guaranty promise is made for the benefit of the debtor. The reason the statute of frauds requires a writing is that it seems reasonable for a person to promise to pay his or her own debts, but it is unusual for a person to promise to pay someone else's debts so we'd like written evidence of such a promise. 3. a guaranty promise is made to the creditor, not to the debtor. If in the previous example, Guarantor Company had told Joe Debtor: "Keep ordering concrete, and we'll pay the bill if you don't," such a promise is not a guaranty and need not be in writing in order to be enforceable. Learning Example: June does not qualify for a car loan. She calls her aunt from the car dealership, and the aunt decides to help out her favorite niece. Over the phone, the aunt tells the general manager of the finance department, "Go ahead and loan her the money, and if she misses the payments, I'll make them." The aunt's promise ____________ contain the elements of a guaranty contract. If the car dealer makes June the loan, and if June fails to make payments, the aunt's promise ______________ be enforceable. A. does; will B. does; will not C. does not; will D. does not; will not NOTE: This is a guaranty arrangement, but because it is not put into writing, it will not be enforceable against the aunt under the statute of frauds. (B)

Alternative Dispute Resolution (M9)

*1. ARBITRATION NOTE: Arbitration is a very old method for resolving disputes that in recent years has become increasingly popular, and which does feature a replacement for a judge and jury. "Judge Judy, the People's Court, and the like - show televised arbitrations." Example: Judge Judy, the People's Court, and the like - show televised arbitrations. NOTE: (On TV, parties usually have 5 to 10 minutes each. In other situations, the sides may have many hours to present their cases.) After hearing the evidence, the arbitrator makes a decision which is legally enforceable and which is just like a court judgment. Arbitration resembles regular litigation in that there is actually a binding decision reached by a third party. Example: arbitration agreements are also generally valid if they are signed before any dispute exists in the first place. Many employers require employees to sign arbitration clauses in their employment contracts in which the employees agree that, if they have future disputes over pay, promotions, or most anything else, they will go through arbitration and not be able to sue their employers in court. NOTE: arbitration clauses are generally binding whether they are signed before or after some specific problem is defined. (there is essentially no appeal from an arbitrator's award. A court will not review an arbitrator's factual or legal determination unless the evidence shows that the award was affected by fraud or collusion.) Learning Example: Zena signs an arbitration agreement on her first day at a new job in which she agrees that if she has any disputes with the company in the future, she will not sue and will only pursue a remedy in arbitration. A year later, Zena has a car accident with Barry. Afterwards, they sign an agreement that they will arbitrate the dispute. A month after that, Zena does not get an expected promotion at work, and she thinks it is because her supervisor dislikes her personally and not because of the quality of her work. Now, Zena is upset at both her employer and at Barry, and she would like to "have her day in court" with both of them. That is to say, she wants to sue both, and not go through arbitration. Can she do so? A. She can sue her company only B. She can sue Barry only C. She can sue both her company and Barry D. No, she must arbitrate both disputes. NOTE: Whether signed before or after an event that leads to a dispute, arbitration is generally binding. (D) *2. MEDIATION NOTE: Mediators, who are neutral third parties and have no power to render a binding decision, are often very useful in breaking an impasse and helping the two sides reach an out of court settlement. Good mediators tend to have a both good people skills and a solid understanding of the law, and they use these skills to help craft reasonable settlement proposals. Example: Mediation is similar to arbitration in that it is usually voluntary and controlled by the parties. It is also similar in that its end goal is to settle disputes outside of court. But the process by which mediation seeks to achieve the goal is quite different. NOTE: A mediator does not impose a solution. The mediator is not a replacement for a judge and jury, and does not decide the case. Instead, he or she tries to help the parties themselves find a solution to their problem. The mediator does not have power over the outcome in the way that an arbitrator does. Example: In the end, if the sides can make a deal, they sign an agreement at the end of the mediation that keeps the dispute out of court. "We'll pay you $75,000 if you agree to drop your case," is the kind of thing that is often at the heart of such a settlement. NOTE: A: it often offers a very good chance for the parties to a dispute to "put it behind them". When people or companies sue in court, there is a winner and a loser. B: it generally doesn't limit your options if things don't work out and a settlement is not reached. Learning Example: Tina has a dispute with her next-door neighbor. The neighbor's tree fell over onto her garage roof and caused significant damage. The neighbor has been slow to agree to pay for the damage. Tina says, "I'd like to work this out quickly, and I hope that I can still be friends with my neighbor later - it would be awkward to live next door to someone who is angry with me." Based on Tina's comments, she should start with which of the following? A. A trial B. An arbitration C. A mediation NOTE: A mediation will help her meet her desires for a faster resolution that is more likely to allow the parties to move past the dispute and coexist peacefully. (C)

Constitutional Law (M18)

*1. Leg/Exec/Jud NOTE: The Constitution breaks federal power into three pieces. A: Legislative Branch (Power) - or the authority to create new laws, is given to the Congress B: Executive Branch (Power) - The President tops the executive branch, which has the authority to enforce the laws. C: Judicial Branch (Power) - The Supreme Court sits atop the judicial branch, which interprets laws. Laws are often anything but clear, and the courts often must decide what laws mean and what situations they apply to. NOTE: each branch of the federal government is supposed to exercise only those types of powers expressly given to it by the Constitution. *DOCTRINE OF SEPARATION OF POWERS* - a flexible one that is subject to various exceptions based on practicality *CHECKS AND BALANCES* - to insure against any single branch of government developing an excessive degree of power. Example: the requirement that the president sign legislation passed by Congress and the ability of Congress to impeach a president *JUDICIAL REVIEW* - An important check that the courts exercise on the Congress NOTE: the federal courts have the final say in deciding whether the Constitution has been violated by a congressional law or executive action. Example: from time to time Congress passes laws that place limits on the possession and distribution of some forms of pornography. When such laws are passed, there are invariably people who make a great deal of profit from the same type of pornography who argue that the new law restricts their right to free speech and free expression. And so, if one side says, "this law violates the 1st Amendment and cannot stand," and the other says, "No, it does not, the law is fine," who decides? The courts do, if anyone files a lawsuit over the issue. Learning Example: When Congress passes a statute, it exercises ______________ power. If someone challenges the law in court and argues that the new law violates a part of the Constitution, the courts will use their power of ______________ to evaluate the law. A. executive; judicial review B. executive; separation of powers C. legislative; judicial review D. legislative; separation of powers NOTE: The power to create new laws is legislative power, and the power to assess the Constitutionality of the new laws is judicial review. (C) **COMMERCE CLAUSE* - intended to make the United States a common market, with the many economic advantages of trade that is unhindered by state boundaries NOTE: beginning in the 1930s, the Court broadened definition of interstate commerce significantly by holding that Congress could regulate commerce occurring entirely within the border of a single state so long as the commercial activity had "any appreciable effect" on interstate or foreign commerce. Example: Wickard v. Filburn,1 Congress was attempting to help farmers by keeping wheat prices from falling too far. Congress chose to do so by limiting production. Farmer Filburn was required (by a law passed by Congress) to not grow as many acres of wheat as he desired to grow. Since he was not located near a state line and intended to grow the wheat only for his own use, he argued that Congress could not tell him what to do. But the Supreme Court held that if an exception was made for farmer Filburn, then exceptions would have to be made for other farmers and the aggregate effect on interstate commerce could be appreciable. Even though Filburn was a very small farmer, to grant him an exception would undermine the regulatory scheme that Congress had in place. Therefore, Filburn would just have to go buy the rest of the wheat he wanted somewhere else. Congress had the authority under the Commerce Clause, the Court held, to pass that law because markets for wheat are interstate in nature, and the cumulative effect of allowing farmers to grow wheat in excess of the number of acres allowed by federal regulations intended to stabilize prices during the Depression would have a substantial effect on interstate wheat markets. Learning Example: Under the Supreme Court's modern interpretation of the Commerce Clause, the most important factor in determining whether a business' activities count as interstate commerce is whether... A. any customers reside in states other than the business' home state B. any physical items (goods) cross from one state to another C. the activities have any appreciable effect on interstate commerce D. the transactions are substantial in number, or involve a substantial sum of money E. none of the above Note: Before the 1930s, the Court paid more attention to whether items crossed state lines or used interstate rivers or railroads. Today, though, the Court is most concerned with whether the activities have an effect on interstate commerce. Most business activities do, and so most business activities can be regulated by the federal government. (C)

The Pleading Stage (*Motion to Dismiss & *Default Judgement) (M4)

1. Plaintiff's Complaint NOTE: The typical lawsuit is commenced when a plaintiff, normally through an attorney, files a complaint with the court having jurisdiction over the case. At the same time, the plaintiff asks the court to issue a summons to the defendant. The complaint sets forth the plaintiff's version of the facts and ends with a request for a certain remedy based on these facts. The plaintiff's responsibility is to alleges those facts that, if ultimately proved by the evidence, will establish a legally recognized claim against the defendant. Example: a plaintiff bought a boat from the defendant, a boat dealer. The plaintiff claims that the vessel leaks badly. After the two parties are unable to resolve their differences, the plaintiff initiates a lawsuit by filing a complaint. The complaint may allege that the parties made an agreement for the sale of the boat on a particular date for a particular price, the price was paid and the boat delivered, the plaintiff used the boat and found that it leaked, the defective condition of the boat is in violation of a warranty made by the dealer, and the plaintiff has suffered economic harm because the boat is worth far less in its defective condition than it would have been worth if not defective. If these facts are ultimately proved, the plaintiff has a good claim against the defendant. The plaintiff might also allege other things, perhaps that the defendant intentionally lied about the condition of the boat and committed fraud. NOTE: the remedy requested by the plaintiff is an award of money damages to be paid by the defendant to compensate the plaintiff for his or her loss. 2. Motion to Dismiss NOTE: When a defendant receives a copy of the plaintiff's complaint, he or she will often either file a motion to dismiss (discussed here) or an answer (discussed next). Before filing an answer to the plaintiff's complaint, the defendant can file a motion to dismiss. Example: The defendant files such a motion if he or she believes that the plaintiff does not have a winning claim even if all the allegations in the complaint are true. If the court grants the motion to dismiss, sometimes the plaintiff will be given an opportunity to amend the complaint. If the problem cannot be corrected by an amendment to the complaint, the court will dismiss the plaintiff's case. If the court denies the defendant's motion to dismiss, the defendant will then file an answer. NOTE: The motion to dismiss is the first of several types of motions that give the trial judge an opportunity to end the litigation early when he or she is convinced that there is no doubt about the outcome of the case and therefore no reason to continue. 3. The Answer NOTE: If there is no motion to dismiss, or if one is filed and denied, the defendant responds to the complaint by filing an answer. The complaint and answer make up the initial pleadings of a case, the main purpose of which is to permit the court and the parties to determine the actual points at issue. Example: The answer may include several components. One thing it usually contains is a denial of the plaintiff's allegations. A denial is essentially a formality that places the plaintiff's allegations in issue and places the burden on the plaintiff to prove the factual assertions he or she has made. NOTE: The plaintiff bears the overall burden of proof. In other words, if the plaintiff does not ultimately produce evidence that convinces the jury (or judge if there is no jury) of the correctness of the allegations in the complaint, the plaintiff loses. Although the defendant must respond to a complaint with an answer, she is not required to prove anything. NOTE: if a defendant believes that the facts create a legally-recognized defense against the plaintiff's claim, she will assert the defense in the answer after the denial. A defense defeats the plaintiff's claim even if the plaintiff is able to prove those facts that establish all the elements of his or her claim. Asserting a defense consists of alleging those facts that, if ultimately proved by the defendant, will establish a legally recognized defense against the plaintiff's claim. For virtually every type of civil claim, the law recognizes one or more defenses. Example: if you punch someone in the nose, the act usually amounts to the tort of battery. But self-defense is a recognized defense to that kind of claim. If someone attacks you, and if you act in reasonable self-defense, then it no longer matters if a plaintiff can prove that you punched him in the nose. Even if you did, it still does not amount to a battery, because the defense of self-defense "blocks" the plaintiff's claim. NOTE: The defendant will sometimes allege facts in his answer that, if proved, will establish a legally-recognized claim against the plaintiff. Either party alone might then prevail on its claim, or both may prevail; in the latter event, the amount of the smaller judgment will be subtracted from the amount of the larger judgment. Most counterclaims arise from the same set of circumstances that led to the plaintiff's claim. In such a case, the rules in most court systems require that the defendant assert the claim in this case as a counterclaim if it is to be asserted at all; he or she cannot keep quiet about it and then later sue the plaintiff. Example: In the boat example above, the defendant might assert a counterclaim alleging that the plaintiff had not paid all the boat's purchase price in violation of the sale contract, and might request damages in the amount of the unpaid portion. It is not a rare occurrence for a plaintiff to have the tables turned by a counterclaim and to regret that he or she ever filed a lawsuit. *4. Default Judgement: Assuming that the court has jurisdiction, the defendant must respond within a specified time period by filing either a motion to dismiss or an answer. This time is 20 days in the federal district courts and about the same amount of time in most state courts. NOTE: The clock starts ticking when the defendant receives the summons and complaint. If the defendant does not respond during this period, the court may grant a default judgment against the defendant. Example: If a default judgment is granted, everything in the complaint is accepted by a court as true and proven, and the defendant loses the case without having a chance to present her side of the story in court. NOTE: By failing to respond, the defendant gives up the right to contest liability. The only issue to be determined is the amount of money damages to which the plaintiff is entitled, or the appropriateness of some other remedy the plaintiff may be seeking. The court will conduct a hearing at which the plaintiff presents evidence on the question of damages or other requested remedy. Example Question 5: Adam sues Brenda and claims that Brenda's dog bit his leg. Brenda receives a copy of Adam's complaint, and in her answer, she alleges that her dog bit Adam when he was trespassing in her yard late at night, that he destroyed her fence when he ran away from the dog, and that he should pay $500 to compensate her for the fence repairs. Characterize the components of Brenda's answer. A. It contains a denial B. It contains a defense C. It contains a counterclaim D. A and C E. B and C NOTE: She does not deny that Adam's claim of a dog bite is true. She asserts instead that there exists a legal justification for the bite. So, she raises a defense and does not make a denial. And, by asking for money to repair the fence, she raises a counterclaim. (E) Example Question 6: Sam sues AlphaCo, his former employer. In his case, he alleges that AlphaCo illegally discriminated against him. During discovery, Sam's lawyer asks AlphaCo for its employment records over the last 10 years. The lawyer also wants to talk to Sam's former supervisor under oath and ask him about Sam's termination. The demand for the employment records is a(n) _______________. The lawyer would like to talk to the former supervisor as part of a(n) ______________. A. interrogatory; interrogatory B. interrogatory; deposition C. request for production of documents; interrogatory D. request for production of documents; deposition NOTE: The demand for business records is a request for production of documents. The questioning of the supervisor will be a deposition because the lawyer will be talking to him in person, and not by submitting a written request for information, which would be an interrogatory. (D)

WAL-MART STORES, INC. v. COCKRELL Texas Court of Appeals, 61 S.W.3d 774 (2001) (M16)

"False Imprisonment" Karl Cockrell and his parents went to the layaway department at a Wal-Mart store. Karl decided to leave the store. As he was walking through the front door, a loss-prevention officer stopped him and requested that Karl accompany him to the manager's office. Once in the office, the officer instructed Karl to pull down his pants. The officer shook the pants to remove any stolen property. Nothing fell out. The loss-prevention officer then instructed Karl to remove his shirt. Karl had a large surgical wound on the right side of his abdomen that was covered by a bandage. Karl was told to remove the bandage, despite his explanation that the bandage maintained a sterile environment around his wound. The officer insisted the bandage be removed, and Karl took off the bandage. No merchandise was found. The loss-prevention officer apologized and let Karl go. Karl sued for false imprisonment. The trial court found in favor of Cockrell. Wal-Mart appealed. "RECAP" At least one appellate court has stated that when a store employee has probable cause to arrest a person for shoplifting, the employee may do so and make a "contemporaneous search" of the person and the objects within that person's control. We therefore hold that when a store employee has probable cause to arrest a person for shoplifting, the employee may do so and make a contemporaneous search of the person and objects within that person's immediate control. The contemporaneous search is limited to instances in which a search of the body is reasonably necessary to investigate ownership of property believed stolen. Accordingly Navarro's contemporaneous search was unreasonable in scope, because he had no probable cause to believe that Cockrell had hidden any merchandise under the bandage. (AFFIRMED) A note on establishing reasonable cause: In Estes v. Jack Eckerd Corp., 360 S.E.2d 649 (Ga.App. 1987), the court held that activation of an anti-theft device that sounds an alarm when a customer is exiting the store provided "reasonable grounds" (probable cause) for a shopkeeper to investigate a potential shoplifting incident, even if it turned out that activation was caused by a clerk's careless failure to remove an anti-shoplifting tag from an item purchased by plaintiff. Most states, like Georgia in this case, have in recent years passed statutes stating that the activation of such an alarm automatically establishes probable cause for detaining the suspected shoplifter if there are conspicuous signs notifying customers of the alarm system. This is just one of various ways of proving probable cause for stopping a customer. The method, manner, and time of the detention must still be reasonable, regardless of how probable cause is established.

SORRELL v. IMS HEALTH, INC. U.S. Supreme Court, 564 U.S. 552 (2011) (M22)

"Free Speech* Pharmaceutical manufacturers promote their drugs to doctors through a process called "detailing," which often involves a scheduled visit to a doctor's office to persuade the doctor to prescribe a particular pharmaceutical. Detailers can be more effective when they know the physicians' background and purchasing preferences. So-called "prescriber-identifying information" enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Pharmacies receive prescriber-identifying information when processing prescriptions. Many pharmacies sell this information to "data miners," firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers whose detailers then use the reports to refine their marketing tactics. Vermont's Prescription Confidentiality Law (Act 80), provides, among other things (in Sec. 4631(d)): "A health insurer, a self-insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber-identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents . . . . Pharmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents . . . ." Act 80 was accompanied by findings in which the legislature found that the goals of drug marketers are often in conflict with the goals of the state, that detailing often causes doctors to make decisions based on incomplete and biased information, and that excessive reliance on name brand drugs drives up health care costs. Both Vermont data miners and an association of drug manufacturers sued, claiming that §4631(d) violated their First Amendment free speech rights. The trial judge upheld the law. The Court of Appeals reversed, holding that it burdened free speech without adequate justification. The Supreme Court granted certiorari. (Re-Cap) The defect in Vermont's law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view targeted detailing based on prescriber-identifying information as "very helpful" because it allows detailers to shape their messages Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs. The State can express that view through its own speech. The State may not burden the speech of others in order to tilt public debate in a preferred direction. The judgment of the Court of Appeals is affirmed.

BRISTOL-MYERS SQUIBB CO. v. SUPERIOR COURT U.S. Supreme Court, 2017 U.S. LEXIS 3873 (2017) (M7)

"Personal Jurisdiction" More than 600 plaintiffs, most of whom are not California residents, filed this civil action in a California state court against Bristol-Myers Squibb Company (BMS), asserting a variety of state-law claims based on injuries allegedly caused by a BMS drug called Plavix. Plavix is a blood thinner that helps prevent blood clots after a heart attack or stroke. BMS, a large pharmaceutical company, is incorporated in Delaware and headquartered in New York, and more than half of its U.S. workforce is employed in New York and New Jersey. Five BMS research and laboratory facilities, which employ a total of around 160 employees, are located in California. BMS also employs about 250 sales representatives in California and maintains a small state-government advocacy office in Sacramento. BMS did not develop Plavix in California, did not create a marketing strategy for Plavix in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California. BMS instead engaged in all of these activities in either New York or New Jersey. However, between 2006 and 2012, BMS sold almost 187 million Plavix pills in California, earning more than $900 million, a little over one percent of the company's nationwide sales revenue. BMS moved to dismiss this lawsuit for lack of personal jurisdiction. After much litigation in the California state court system, the California Supreme Court held that although California courts did not have general personal jurisdiction over BMS in this case, they could exercise specific personal jurisdiction. BMS appealed. "RECAP" Our straightforward application in this case of settled principles of personal jurisdiction will not result in the parade of horribles that respondents conjure up. Our decision does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. BMS concedes that such suits could be brought in either New York or Delaware. Alternatively, the plaintiffs who are residents of a particular State—for example, the 92 plaintiffs from Texas and the 71 from Ohio—could probably sue together in their home States. Reversed.

Assent, Part II - Fraud (M30)

**FRAUD* - is deception—the intentional misleading of one person by another. Example: Sam, the owner of a fairly new car, tells Bob that he purchased it new six months ago, and Sam knows that it was in fact used when he acquired it, Sam is guilty of fraud if Bob, believing this statement to be true, subsequently purchases the car (4 Elements of Fraud) To be successful in a fraud action, the plaintiff is required to show all of the following: 1. That defendant made a misrepresentation of a material, or important, fact. 2. That the statement was made with the intent to deceive (i.e., defendant knew or should have known that the statement was false). 3. That plaintiff reasonably relied on the misrepresentation. 4. That plaintiff suffered an injury as a result. Learning Example: Picture a Rolex. Oyster Perpetual. Self-winding. Certified Chronometer. Nice. But this Rolex has a problem. Because Seller Sam once dropped it, its second hand and the shaft that turns it is bent ever so slightly. No one would really notice. But every so often, the flaw causes the movement to get stuck, and the watch stops keeping accurate time. To avoid committing fraud, does Seller Sam have an obligation to disclose this defect to Ben Buyer? A. Yes, but only if Sam is a watch expert or in the business of selling watches. B. Yes, whether or not Sam is a watch expert or in the business of selling watches. C. No, because if he does not make a false statement, he can't commit fraud. NOTE: Generally, sellers (expert or not) have an obligation to disclose latent, or hidden, defects. (B) Learning Example: Jack and Jill each own a Chewbacca action figure. Jill's is even still in its original box. Their toys, like most of the figures from the same production run have a problem - the feet fall off at the slightest touch. The few figures in the world that have sturdy feet are worth fifty times what the flawed figures are worth. Carl Collector talks to Jack over the phone. "Does the Chewie you are selling have the 'feet fall off' thing?" he asks. Jack glances at his footless action figure. "Nope," he replies. Carl agrees to buy it. Carl next calls Jill and asks her the same question. Jill doesn't know one way or the other, since her action figure is still in the box. She could find out if she looked, but she is not about to check too closely. "No way," she says. "The feet are sturdy." Carl agrees to buy it. Jack has committed ________________, and Jill has committed __________________. A. fraud; fraud B. fraud; innocent misrepresentation C. innocent misrepresentation; fraud D. innocent misrepresentation; innocent misrepresentation NOTE: Both have committed fraud. Jill recklessly made a false statement, and Jack did so intentionally. (A)

Case as Civil and Criminal (M1)

*1. CIVIL The most common types of controversies are civil actions—that is, actions in which the plaintiffs are seeking to enforce private obligations or duties against the defendants. EXAMPLE: Civil laws are all those laws that spell out the rights and duties existing among individuals, business firms, and sometimes even government agencies. NOTE: Contract law, tort law, and sales law all fall within the civil category. Example: In a civil lawsuit the plaintiff must prove her case by a preponderance of the evidence in order to win. Note: the judge or jury deciding the case must be at least somewhat more convinced by the plaintiff's evidence than by the defendant's. *2. CRIMINAL Criminal law is comprised of those statutes in which a state or the federal government prohibits specified kinds of conduct and which additionally provide for the imposition of fines or imprisonment on persons convicted of violating them. Example: Criminal suits are always brought by the government whose law has allegedly been violated. NOTE: In enacting criminal statutes, a legislature is saying that certain activities are so inherently inimical to the public good that they constitute wrongs against organized society as a whole. Example: In a criminal action it is necessary that the government prove its case beyond a reasonable doubt. NOTE: jurors must be significantly more convinced that a defendant committed a wrong before they will find the defendant guilty in a criminal case. 3. CIVIL & CRIMINAL Some wrongful acts are of a dual nature, potentially subjecting the wrongdoer to both criminal and civil penalties. Example: if a man steals a car, the state could bring a criminal action against him, and the owner of the car could also bring a civil action to recover damages arising from the theft. EXAMPLE Question 2: Paul Plaintiff sues Donna Defendant in a tort case. He accuses her of running a stop sign and hitting his car and seeks damages to compensate him for his losses. Paul's case will be a ___________ lawsuit. In the case, Paul's burden of proof will be to prove his case ____________________. A. civil; by preponderance of the evidence B. civil; beyond a reasonable doubt C. criminal; by preponderance of the evidence D. criminal; beyond a reasonable doubt NOTE: Private cases between private people or companies are civil lawsuits. In such cases, plaintiffs must present enough evidence to prove their claims true by a preponderance of the evidence. (A)

Introduction to Torts (M11)

*Intentional Torts and Negligence - (two main types of civil lawsuit.) Tort: is a civil wrong in which a defendant fails to meet a legal duty to another in a way that causes harm. Tort law covers many types of problems. Example: A plaintiff might sue in a tort case over a physical injury, or damage to her property or reputation, or over emotional distress. Contract law, which we will take up later, deals with broken agreements. Negligence: a defendant is accused of failing to use reasonable care at the time a defendant suffers an injury or a loss. Example: A driver who is texting and who hits another car would likely be acting in a negligent fashion. Intentional Tort: the plaintiff argues that the defendant caused harm intentionally or recklessly. Intentional harm is deliberate, or purposeful. Recklessness involves acting with extreme indifference to the safety or wellbeing of others Example: a driver who tries to run another off the road and succeeds (intentional action), or one who hits a car while driving 85 miles per hour in a 35 mile per hour zone (reckless action), could be sued in an intentional tort case. Learning Example: Alice is distracted by her navigation system and strikes Al's car with her car. Brenda is driving 50 miles per hour over the posted speed limit while drunk, blindfolded, and talking on two cell phone when she strikes Bill's car. Which of them has likely committed an intentional tort? A. Alice B. Brenda C. Both A and B D. None of the above NOTE: Simple carelessness like Alice's leads to negligence lawsuits. Deliberate actions, and reckless actions like Brenda's, lead to intentional tort cases. (B) (2 Practical Differences) 1. Compensatory Damages - are awarded to make up for harm actually done Example: A plaintiff in a car accident might receive compensatory damages to cover her car's repair bill, medical care she had to seek, lost wages, and perhaps pain and suffering. NOTE: Compensatory damages are "standard" awards. In most any type of lawsuit (negligence, intentional tort, contract, etc.) a plaintiff can seek to recover actual losses. *2. Punitive Damages - allow a jury to go beyond merely compensating a plaintiff for his injuries and punish defendants who have behaved particularly badly. If a jury is outraged by an intentional tort, it is allowed a significant discretion in awarding these "extra" damages which are not available in negligence or contract cases. Example: imagine that Al gets angry and punches Bob in the face - an intentional wrongful act - and that the jury awards Bob $10,000 in compensatory damages to cover his medical bills and pain and suffering. The same jury might award Bob an additional $10,000, or $50,000, or more, in punitive damages to further punish Al. NOTE: Punitive damages punish wrongdoers and also serve the purpose of deterring them, and others, from punching other people. Learning Example: Ann sues Bill in a negligence lawsuit. What type(s) of damages can she seek? A. compensatory damages B. punitive damages C. both A and B D. none of the above NOTE: Of the types of cases we have examined so far, only in intentional tort cases can a plaintiff seek punitive damages (A)

LEONARD v. PEPSICO, INC. U.S. District Court, Southern District of New York, 88 F.Supp.2d 116 (1999) (M25)

*Offer* Plaintiff Leonard saw a television commercial advertising a promotion that defendant PepsiCo was sponsoring for its products. The ad stated that one could collect bottle tops and accumulate "points" for use in buying Pepsi products. Many of the prizes were various types of merchandise featuring a Pepsi logo and cost a few hundred Pepsi points. At the end of the ad, a high school student was shown landing a Harrier Jet at a school with a subtitle indicating that the cost of the jet was 7 million Pepsi points. In the promotion's fine print was a statement that individual points could be purchased directly for ten cents each. Plaintiff sought investors and accumulated $700,000, enough to purchase 7 million Pepsi points. He then demanded a Harrier jet, and Pepsi refused. Plaintiff filed this suit for breach of contract. Defendant moved for summary judgment. The following ruling was later affirmed by the Court of Appeals. (Re-Cap) The cost of a Harrier Jet is roughly $23 million, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter jet plane for $700,000 is a deal too good to be true. Plaintiff argues that a reasonable, objective person would have understood the commercial to make a serious offer of a Harrier Jet because there was "absolutely no distinction in the manner in which the items in the commercial [caps, t-shirts, jackets, Harrier Jet] were presented. Plaintiff also relies upon a press release highlighting the promotional campaign issued by defendant, in which "no mention is made by [defendant] of humor, or anything of the sort." These arguments suggest merely that the humor of the promotional campaign was tongue in cheek. Humor is not limited to what Justice Cardozo called "the rough and boisterous joke [that] evokes its own guffaws." Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (1929). In light of the obvious absurdity of the commercial, the Court rejects plaintiff's argument that the commercial was not clearly in jest. Defendant's motion for summary judgment is granted.

Subject Matter Jurisdiction Example Questions (M5)

Example Question 6: Max sues the Houston Police Department after he is arrested during a protest. He claims his free speech rights under the U.S. Constitution have been violated. Jack sues MegaCorp over crop losses after MegaCorp dumps toxic chemicals into a river that eventually runs across his farm. He sues based on the federal Clean Water Act and also under Texas tort law. Which of these two plaintiffs could bring their case to federal court? A. Max B. Jack C. Both A and B D. None of the above NOTE: Max's case is based on the federal Constitution, so it's in. And although Jack's lawsuit is based on both state and federal law, since one of his claims raises a federal question a federal court would also have subject matter jurisdiction over his case. (C) Example Question 7: Max, a resident of Texas, sues the Houston Police Department after he is arrested during a protest. He claims his free speech rights under the U.S. Constitution have been violated. He seeks $50,000. Can he bring his claim to federal court? A: Yes B: No NOTE: Don't be too distracted by the "above or below $75,000" issue. The number of dollars involved is relevant only in a diversity of citizenship situation. Max can sue no matter how much his is seeking because his case is based on federal law and jurisdiction is based on a federal question. Had Max's suit been a claim based on state law, he could successfully file in federal court only if he and the defendant were citizens of different states and more than $75,000 was at stake. (A)

Personal Jurisdiction Example Questions (M6)

Example Question 8: Paul Plaintiff, a resident of Texas, files a lawsuit in Texas against Don Defendant, a resident of California. Don receives notice of the lawsuit, and tells his lawyer, "I don't want to travel to Texas to be sued by this guy." Don's lawyer says, "Maybe you don't have to." The lawyer argues that the Texas court lacks personal jurisdiction over Don. Don's lawyer asserts in a court filing that the court does have personal jurisdiction, and that the case should not proceed. He does not say anything else about the case in the filing. Don's lawyer has filed a(n) _____________________. This action ______________ give the Texas court personal jurisdiction over Don. A. appearance; does B. appearance; does not C. special appearance; does D. special appearance; does not NOTE: Don's lawyer has limited his claim to a lack of jurisdiction, and so it counts only as a special appearance and is not considered a "formal step to defend a lawsuit". (D) Example Question 9: Paul Plaintiff, a resident of Texas, files a lawsuit in Texas against Don Defendant, a resident of California. Don receives notice of the lawsuit, and tells his lawyer, "I don't want to travel to Texas to be sued by this guy." Don's lawyer says, "Maybe you don't have to." The lawyer argues that the Texas court lacks personal jurisdiction over Don. Paul's lawyer asserts that the court does have personal jurisdiction, and that the case should proceed. Six months before, Don travelled to Texas, signed a contract with Paul while he was there, and returned to California. He has made no other trips to Texas, and has had no other interactions with the state. In Paul's lawsuit, he alleges that Don has breached that contract. Which of the following types of personal jurisdiction does the Texas court have over Don? A. General personal jurisdiction B. Specific personal jurisdiction C. Both A and B D. None of the above NOTE: Don engaged in a specific act (signing the contract) in the forum state (Texas), and the lawsuit arises out of that specific act. Don has no long term presence in Texas or regular Texas activities, and so there is no general personal jurisdiction. (B)

The Trial Stage Example Questions (M8)

Example Question: Fred is a prospective juror in a case in which Al Attorney will be asking for $10,000,000 in damages. During voir dire questioning, Al gets the feeling that Fred will be unlikely to award such a large sum. He does not have a good argument that Fred will be biased or will fail to be impartial, but he would still like to keep him off the jury. To do so, Al will probably have to use which type of challenge? A. challenge for cause B. peremptory challenge C. neither would be effective for keeping Fred off the jury NOTE: Judges will grant challenges for cause only if a prospective juror seems likely to biased. But peremptory challenges can be used for most reasons as long as they are not used in a discriminatory way. (B) Example Question: Jack loses a huge sum in a lawsuit with Pat Plaintiff, and he does not pay Pat for a long time. Pat's lawyer goes back to court and seeks the court's help in collecting what is owed.The court issues a document that empowers a sheriff to seize Jack's car and sell it at auction to raise part of the money. The court issues a second document that orders Jack's bank to deliver some of Jack's deposits into the custody of the court. The first document is a writ of ______________, and the second document is a writ of __________________. A. execution; execution B. execution; garnishment C. garnishment; execution D. garnishment; garnishment NOTE: Writs of execution empower law enforcement officers as described, and writs of garnishment order third parties to turn over assets belonging to another to the court. (B)

The Uniform Commercial Code and Sale of Goods Contracts (M35)

KEY NOTE: This module focuses on several such circumstances, in which the Uniform Commercial Code has a unique provision that differs from the common law and contract rules. (Scope of Article 2 of the UCC) Example: A sale is defined as "the passing of title from the seller to the buyer for a price." Thus, Article 2 does not apply to leases, or to arrangements for things like the storage of furniture in a warehouse, because only temporary possession of the goods - not ownership - is transferred. NOTE: Essentially, two requirements must be met before a particular item of property is classified as a good: 1. It must be tangible. In other words, it must have a physical existence. Thus intangible property such as a patent, copyright, trademark, investment security, or contract right would not come within the scope of Article 2. 2. It must be movable. This requirement obviously excludes real estate, which is tangible but not movable. Learning Example: Sidney signs a contract to sell her vacation house. Tom makes an agreement to work as an engineer for a local tech company. Veronica makes a deal in which she will sell her collection of rare books. Which of these contracts would be covered by Article 2 of the Uniform Commercial Code? A. Sidney's only B. Tom's only C. Veronica's only D. A and B E. B and C NOTE: Sidney is selling non-movable real estate, and Tom is selling his labor, or services. Veronica is selling tangible, movable property, or goods. (C) Learning Example: Fred places a verbal order at a store for a new Tag Heuer watch. He pays the full price - $1000 - at the time of the order. The clerk says the watch will arrive in about a week. The next morning. Fred changes his mind about the watch. He goes to the store and argues that he should be able to cancel the order and get his money back. The store refuses, and Fred sues, citing the statute of frauds. Does Fred have a valid argument that the statute of frauds should allow him to escape this deal? A. Yes, because the watch costs more than $500. B. Yes, because the watch has not yet been delivered. C. Yes, be D. No NOTE: The watch is a "good", and as such, the fact that it costs at least $500 would often be relevant. But, the UCC calls for the enforcement of verbal contracts, even when goods do cost at least $500, in some circumstances, one of which is when the goods have been paid for and the payment accepted. (D)

Assent Issues, Part 1 (M29)

Learning Example: Paul owns two properties outside Woodsfield, Ohio. Gary, after viewing both acreages, makes Paul a written offer to purchase one for $18,000. Paul accepts the offer. It later develops that Gary had one property in mind while Paul, after reading the description contained in Gary's offer, honestly and reasonably believed that Gary was referring to the other property. Who can rescind the agreement? A. Paul B. Gary C. Both can rescind the agreement D. Neither can rescind the agreement NOTE: Either party can rescind the agreement, because there was a mutual mistake about the identity of the contract's subject matter. (C) Cobb purchases a gemstone from Drury for $25 and leaves Drury's house. At the time of contracting, both parties believe the stone is a topaz. In fact, it turns out to be an uncut diamond worth $700. Drury sues. This scenario is an example of a _______________ mistake, and Drury ____________ be able to rescind the contract. A. unilateral; will B. unilateral; will not C. bilateral; will D. bilateral; will not NOTE: Since both parties were mistaken about the true character of the contract's subject matter, it is a bilateral mistake. Drury can have the contract rescinded, thereby recovering the stone. (C)

Intentional Torts (M15)

Learning Example: Sue rents a Segway scooter. While riding around downtown, she spots her arch enemy Archie, who is standing on a sidewalk facing away from her and looking at his phone. Sue grimaces, sets her shoulders, and accelerates to the Segway's top speed of 5 miles per hour. With a look of pure rage, she zeroes in on Archie, who is still looking at his phone and scrolling through an endless stream of nothing in particular. Eventually, Sue reaches Archie and runs into him from behind, knocking him down to the sidewalk. Archie never saw it coming. In the fall, he breaks his wrist. What torts has Sue committed? A. Assault B. Battery C. Both A and B D. None of the above NOTE: Since Archie was never afraid, Sue has not committed assault. But, since she deliberately acted and caused a harmful bodily contact, she has committed battery. (B) Learning Example: Bill says, "I hate Steve!" Steve's boss hears the exclamation, and later fires Steve because he no longer trusts him. Steve has to go into business for himself. Tom says, "Steve stole $1000 from me when I hired him to do my taxes!" This is not true. Steve's largest client fires him. Bill has committed __________________, and Tom has committed _______________. A. no type of defamation; slander per se B. no type of defamation; libel C. slander; slander per se D. slander; libel NOTE: Bill has given his opinion, and has not stated something that is verifiably false, so there is no defamation even though Steve has suffered a negative consequence. Tom has lied to another person about Steve, and because it involves Steve's professional reputation, it amounts to slander per se and not just ordinary slander. (A)

Offers (M24)

Requirements of the Offer #1 - Manifestation of Intent NOTE: (Basic rule) No "magic words" are required to make an offer Example: If a person makes a statement, and a reasonable listener would think that the statement amounted to a legitimate proposal to make a contract, then the statement probably amounts to an offer. NOTE: (Basic rule) Objective intent is important, and subjective intent is not. Learning Example: Bill says proudly to his friend Dean, "Look! I just got the new iPhone!" Holding it sideby-side with his old iPhone, he says, with great enthusiasm, "It's so much better! Look what it can do! Wow!" Dean thinks that the phones look about the same as Bill rambles on and on. Dean gets really, really bored for a while. But, his attention returns when Bill says, "I need to get rid of this old one. I guess it's not worth much now, not with all these upgrades on the new one!" "Hmm...can you make calls and check baseball scores on the old one?" Dean asks. "Sure, but oh baby, not like you can on the new one! I mean, the pixel count alone..." "How much would you want for it?" Dean asks. "Oh. Ah...I'll sell it to you for $50." "I'll take it," Dean says. "Oh, ah...OK," Bill says. "But, you know, I didn't really want to sell it. I, ah...I really never meant to, you know, make a real contract or anything. I was just, ah, just talking." Has Bill made an offer? A. Yes, because his objective intent was to make an offer. B. No, because his subjective intent was to not make an offer. C. No, because he did not use the word "offer" in the statement underlined above. D. No, because he did not write his offer down. NOTE: The underlined statement would seem, to a reasonable listener, like a specific proposal to make a specific deal. Bill's secret, "in his own mind" intent may be different, but subjective intent is not relevant. He does not need to use the word offer or (as we shall see later) put the proposal in writing to make an offer. (A) NOTE: (Basic rule) The borderline between negotiating and making an offer Requirement for an offer #2 - The requirement that an offer be "reasonably definite" is largely a practical one. NOTE: As a general rule, then, a communication must cover all major matters affecting a proposed transaction in order to constitute an offer. If one or more key elements is missing, the communication is merely a preliminary negotiation. Example: if Steve makes a written proposal to sell his farm Greenacre to Betty ''at a mutually agreeable price,'' and if Betty promptly sends an acceptance, there is no contract for the reason that Steve's proposal was not definite. A court could not enforce the "agreement" because no price was specified. Learning Example: Zehmer is a farmer who owns the Ferguson farm. Lucy is a neighbor who has attempted to buy that farm before. Lucy sees Zehmer in a restaurant and tells him: "I bet you wouldn't take $50,000 for that farm." Zehmer replies: "Yes, I would, too. You wouldn't give fifty." The parties then talked about a potential deal for 40 minutes, writing up one version and then amending it when it dawned on them that Zehmer's wife needed to agree. The document the Zehmers signed said: "We hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,000, title satisfactory to the buyer." The parties were drinking alcohol during this time, but were not so drunk as to not understand what they were doing. Later, when Lucy tried to pay, the Zehmers claimed that they were only kidding—it was all a big joke. Lucy sued to enforce the deal. Does a contract exist? A. No, because Zehmer lacked the required subjective intent to sell. B. No, because the offer was not sufficiently definite. C. Yes. NOTE: Objective intent is the key to whether an offer exists, not subjective (in your own mind) intent. The court held that a reasonable party in Lucy's shoes would not have known that Zehmer was joking. The price was fair, the parties negotiated for 40 minutes, and they put the deal in writing and signed it. And while the offer could have been more specific (with the farm's address, acreage, etc.) there is enough information in the offer for a court to determine what each side is promising the other. The basic deal is clear - the farm for the $50,000. (C) Requirement for an offer #3 - Communication of the Offer NOTE: An offer has no effect until it has legally reached the offeree. Example: A city council, via a public advertisement, offers to pay $5000 to the person or persons who give a tip that helps police capture an escaped criminal. If Mr. Smith reports the fugitive, and only later learns of the offer, his act does not constitute an acceptance of the offer and he is not entitled to the reward. The city may well decide to award the money anyway, but it would not be forced to do so under contract law. *SPECIAL RULES: Advertisements and Auctions* 1. Advertisements - are usually considered to be preliminary negotiations, rather than offers to sell. 2. Auctions - If conducted openly and fairly, auctions are an efficient way of determining a reasonable price in transactions between willing sellers and buyers. A: With Reserve - the act of putting a particular item up for auction indicates only a willingness to consider offers to purchase. A bid is treated as an offer which may be accepted. NOTE: Because no contract is formed until the end of the auction, the bidders are free to withdraw their bids prior to that event and, more importantly, the seller is free to withdraw the item from sale if no bids are as high as the seller desires. B: Without Reserve - The act of putting an article up for sale in a without reserve auction is treated as a definite offer. NOTE: The first bid creates a contract binding on the seller, unless a higher bid is made. The seller can no longer withdraw the item. The highest bidder has a contract for sale that she can enforce.