Understanding the US Legal System: Constitutions, Contracts, and Torts - Prof. Richard E. , Study notes of Business and Labour Law

Download Understanding the US Legal System: Constitutions, Contracts, and Torts - Prof. Richard E. and more Study notes Business and Labour Law in PDF only on Docsity! 1 Chapter 1 & 2 (11q) 1. Among all of the sources of law, the one considered to be the supreme law of the United States is the Unites States constitution 2. The executive branch can veto acts/actions of the other branches 3. When we try a case in civil or criminal courts the attorneys will question the jury to determine biases – voir dire is the jury selection process 4. At trial the process where the defendant’s attorney asks questions of the plaintiff’s witnesses is called cross examination (direct examination is when the plaintiff’s attorney questions the plaintiff’s witness) 5. Appellate courts have different options they may use when it comes to ruling on decisions of the trial courts i. Affirm the trial court’s decision ii. Reverse the trial court’s judgement iii. Remand (send back) the case iv. Affirm or reverse a decision in part v. Modify the decision 6. The pleasing made by a plaintiff alleging wrongdoing on the part of the defendant is the complaint. It is the document that, when filed with the court, initiates a lawsuit. It is up to the defendant to file an answer to that complaint. Sets out the grounds for the court’s jurisdiction, the cause of her actions in her case, and the relief or remedy which she seeks. This is for cases filed in the federal courts. 7. During a process known voir dire, the attorneys for both sides may challenge prospective jurors rather for cause or peremptorily (for no cause). i. Attorneys may challenge a certain number of prospective jurors peremptorily (without providing reason) – cannot discriminate based on race or gender ii. Attorneys may challenge prospective juror for cause (provide a reason why an individual should not be sworn in as a juror) an unlimited number of times 8. Attorney’s fees come in different forms i. Fixed fees ii. Hourly fees iii. Contingency fees (attorney agrees to take a share of the winnings in the case, varies based on how far the case goes) iv. Mix of the above 9. In a civil case, the burden of proof is by the greater weight of the evidence (or by a preponderance of the evidence). In a criminal case the burden of proof is beyond a reasonable doubt (not beyond a shadow of a doubt). 10. The US Supreme Court justices and all Federal judges are appointed and confirmed by the senate. They serve during good behavior. Chapter 4 & 16-18 (6q) 2 1. Ethics is the study of what constitutes right and wrong behavior. 2. Corporate structure – decisions are made that affect everyone (share holders, vendors, suppliers, employees, customers, clients, the community in which the business is locates). 3. The Positivist school is a school of legal thought whose adherents believe that there can be no higher law than a nation’s positive law. There’s no such thing as natural rights. 4. The categorical imperative is an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen in everybody else in the same situation acted the same way. Duty based ethics. 5. The utilitarianism approach is one in which ethically correct behavior is not related to any absolute ethical or moral values but to an evaluation of the consequences of a given action on those who will be affected by it. In utilitarianism reasoning, a good decision is one that results in the greatest good for the greatest number of people. Outcome based ethics. 6. The Golden Rule 7. The law is a moral minimum. Ethical duties go beyond the law. Chapter 5 & 7 1. The written document adopted by the constitutional convention of 1787 became known as the US Constitution. The Bill of Rights refers to the first 10 Amendments. 2. Katzenback v. McClung – Congress acted within its power under the Commerce Clause of the US Constitution in forbidding racial discrimination in restaurants as this was a burden to interstate commerce. Heart of Atlanta Motel v. United States – holding that the US Congress could use its Commerce Clause power to fight discrimination. i. Interstate is inside and out ii. Intrastate is only in 3. Freedom of speech is not absolute. It does not protect defamatory remarks. Defamation – any published or publicly spoken false statement that causes injury to another’s good name, reputation, or character. 4. The clause that has the greatest impact on businesses is the commerce clause. It is the provision in Article I Section 8 of the US Constitution that gives Congress the power to regulate interstate commerce. 5. Warrants – plain view exception. If they see something, they can search the car/house with or without a warrant. 6. Exclusionary Rule – in criminal procedure, a rule under which any evidence that is obtained in violation of the accused’s constitutional rights guaranteed by the 4th, 5th, and 6th amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court. Chapter 8 (15q) 5 i. Rescission – a remedy whereby a contract is canceled and the parties are returned to the positions they occupied before the contract was made ii. Restitution – a person restored to his/her original position prior to loss or injury, or placed in the position he/she would have been in had the breach to contract not occurred iii. Specific Performance – requires exactly the performance that was specified in a contract iv. Reformation – a court ordered correction of a written contract so that it reflects the true intentions of the party 15. There are situations where people may have rescission and get their money back even though the contract has been preformed. If you borrow money and pay usurious interest, you may sue for a remedy even after you have paid all of it back. But if you pay an unlicensed contractor for work he did over $30,000 dollars you may not get that back after you pay him. But you don’t have to pay him anymore. If you lose money in an illegal poker game, you cannot get that back. 16. There are many different types of offers. A counteroffer is an offeree’s response to an offer in which the offeree rejects the original offer and at the same time makes a new offer (a rejection + a new offer). 17. You may withdraw an offer any time prior to acceptance. 18. Pre-existing legal duties to perform – police officer may not collect an award for catching a criminal that, during the course of his job, he had to catch. A building contractor wants more money based on a fixed price contract due to unforeseen difficulties. Usually, the rule is that he may not do that. He is subject to the preexisting duty. 19. Communication of the offer and the reward (Jewish synagogue case) 20. Reward – is an offer, a unilateral contract (accepted by completing an act like finding and returning a lost dog) 21. Consequential Damages are special damages that compensate for a loss that is not direct or immediate. The special damages must have been reasonably foreseeable at the time the breach or injury occurred in order for the plaintiff to collect them. Nominal Damages are small monetary awards granted to a plaintiff when no actual damage was suffered. Liquidated Damages are an amount, stipulated in the contract, that the parties to a contract believe to be a reasonable estimation of the damages that will occur in the event of a breach. Punitive Damages are monetary damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct. Compensatory Damages are monetary awards equivalent to the actual value of injuries or damages sustained by the aggrieved party. 22. Hadley v Baxendale set rules for establishing consequential damages (indirect damages). Compensatory damages are direct damages. With nominal someone wins but gets only a small amount. 23. If a person is judged incompetent by a court of law all contracts made by that person are illegal. 6 24. Mitigation of damages – a rule requiring a plaintiff to have done whatever was reasonable to minimize the damages caused by the defendant. A landlord may be required to mitigate the damages of the tenant who leaves a lease early. 25. Unconscionable contract or clause – a contract or clause that is void on the basis of public policy because one party, as a result of his or her disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominating party. These are contracts that are fundamentally or grossly unfair to one of the parties to the contract. 26. Genuineness of Assent or Voluntary Consent – may be lacking because of a mistake, misrepresentation, undue influence, or duress. In other words, because there is no true “meeting of the minds.” If you have a meeting of the minds, there is no mutual mistake of fact. The lack of voluntary consent may be used as a defense to the contract’s enforceability. 27. Undue Influence arises from special kinds of relationships in which one party can greatly influence another party, thus overcoming that party’s free will. The party being taken advantage of does not exercise free will in entering into the contract. To prove undue influence, there must be clear and convincing evidence that the person did not act out of free will. You must prove the existence of a confidential relationship (the one who entered the contract was actually influenced because of that confidential relationship) 28. Liquidated Damages – an amount, stipulated in the contract, that the parties to a contract believe to be a reasonable estimation of the damages that will occur in the event of a breach. A builder signs a contract stating that he will pay $50 a day if the building is not completed by a certain date. The amount cannot be excessive nor may it be a penalty. 29. There must be consideration and an action/promise for there to be a contract. Refraining from doing an action is, in fact, doing an action. Forbearance – the act of refraining from an action that one has a legal right to undertake. 30. Palsgraf v. Long Island Railroad Co. – In order to be a part of proximate causation, the damage must be foreseeable. Proximate Cause – legal cause, exists when the connection between an ace and an injury is strong enough to justify imposing liability. (In negligence we studies it as a factor of proximate causation, in contracts we studied it in consequential damages – special damages that compensate for a loss that is not direct or immediate) 31. Courts will uphold covenants not to compete if they are reasonable in time and geographic location. Covenant not to Compete – a contractual promise to refrain from competing with another party for a certain period of time and within a reasonable geographic area. 32. When one party to a personal service contract dies or becomes incompetent prior to the performance and cannot perform, a discharge of the contract occurs. Impossibility of Performance – a doctrine under which a party to a contract is relieved of his/her duty to perform when performance becomes impossible or totally impracticable through no fault of either party. 33. No contract exists where there is mutual mistake of material fact. Never when there is mutual mistake of value, unilateral mistake of value, or unilateral mistakes of fact. 7 34. One tort that involves contracts and can be a crime is fraud. 35. Contracts may be discharged in a number of ways, including bankruptcy, impossibility of performance, expiration of the statute of limitations, and frustration of purpose. Frustration of Purpose – a doctrine under which a party to a contract will be relieved of his/her duty to perform when the objective purpose for performance no longer exists due to reasons beyond that party’s control. 36. Silence is not an acceptance of a contract. 37. The termination of an offer and the termination of a contract will occur when the subject matter is destroyed. 38. Mailbox Rule or the Deposited Acceptance Rule – acceptance takes effect (completing the formation of the contract) at the time that the offeree sends or delivers the communication via the mode expressly or impliedly authorized by the offeror. Chapters 11 & 12 & 13 1. If someone is not posing an immediate threat, violence is not acceptable. After warning a burglar, you may not shoot him should he try to run. 2. Tort of Appropriation – the use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user. 3. To completely prove negligence and recover damages a plaintiff must: i. Prove that there was a duty of care and a breach of that duty. Duty of Care – the duty of all persons to exercise a reasonable amount of care in their dealings with others. ii. Prove that there was an injury, loss, or some kind of damage to person or property iii. Prove that there was actual and proximate cause. You must prove actual first. 4. Palsgraf v. Railroad – railroad not liable to Helen because causation was not proximate. 5. Lumley v. Gye – contractual interference, opera house case 6. Not all torts are crimes. Some torts have crimes that accompany them. 7. Every tort plaintiff is represented by a private attorney not by a government attorney. 8. Every tort lawsuit is a civil matter not a criminal matter. 9. The punishments for crimes are fines and/or imprisonment. 10. Defamation – any punished or publicly spoken false statement that causes injury to another’s good name, reputation, or character. In order to prove defamation, the plaintiff must prove that the statement was false and made with a reckless disregard for the truth and made with actual malice. Actual Malice – a condition that exists when a person makes a statement with either knowledge of its falsity or a reckless disregard for the truth. 11. Assault – any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat. 12. Contributory negligence – a theory in tort law under which a complaining party’s own negligence contributed to or caused his or her injuries. It is an absolute bar to recovery.