BLAW Chegg Notes PDF

Chp 1. Intro to Law Law: The body of rules governing individuals and their relationships Classifications of Law Public Law: Laws enacted by an authorized government body Examples: State and Federal Constitutions, Private Law: Rules and regulations developed between two individuals Example: Landlo...

Chp 1. Intro to Law Law: The body of rules governing individuals and their relationships Classifications of Law Public Law: Laws enacted by an authorized government body Examples: State and Federal Constitutions, Private Law: Rules and regulations developed between two individuals Example: Landlords have regulations for their tenants, Terms of a contract Criminal Law: a body of law regulating wrongful conduct, penalizing those who commit crimes Civil Law: Wrong against person or persons - Require Restitution (Compensation) Substantive Laws: Give rights and responsibilities Procedural Laws: Rules and regulations must be followed to enforce substantive laws Common Law: A set of laws developed historically and by judicial precedent - Stare Decisis: Let the decision stand - How we own and pass title of property is developed from common law Statutory Law: A set of formally written laws - Exists at all levels of government - Statutory Laws vary due to cultural difference Equity: Body of law that attempts to do justice when the law does not provide a remedy, or when a remedy is inadequate, or application of law is unfair - Courts of Equity can issue injunctions - You can damages and injunction in the same court Purposes of Law 1. Keeping Order 2. Influencing Conduct 3. Honoring Expectations  4. Promoting Equality 5. Law as the great compromiser Characteristics of Law 1. Flexibility 2. Consistency 3. Pervasiveness (the quality of spreading all areas of a group) The Theory of Law: Jurisprudence Jurisprudence: An area of study encompassing the different opinions or values that form the basis of creating laws - Natural Law: A theory of jurisprudence, that holds that we have certain rights that cannot be taken away by law - Social Contract: we mutually honor people in power Sources of Law Constitutional Law: Protect general rights Statutory Law at the Federal level Congressional Law: Congress is responsible for statutory law at the federal level Executive Orders: Laws of the executive branch of the fed gov and deal with only that branch Statutory Law at the State level - Each state has its own constitution State Codes: a code in each state that consists of laws passed by its legislature - Contains state criminal laws, Contract Laws Chapter 3: The Judicial System The referees for court decisions Types of Courts Trial Court: A place in the judicial system where the facts are presented - This court is where the jury sits if the case is a jury trial - Evidence and witnesses are presented - The first decision in the case is made Appellate Courts: Reviews the conduct of trial courts to determine whether they apply to law correctly and follow the rules of procedure - Do not hold trials How Courts Make Decisions Judicial Review: A review of trial courts decisions and verdicts to determine whether any reversible error was made in the proceedings - In addition to the transcript and evidence, each of the parties can present the appellate court with a brief (a summary of the case and the legal issues being challenged on appeal - In 2 to 1 decision in appellate court decisions, a justice who is not in the majority will draft a dissenting opinion Checking for Error Reversible Error: decisions that might have affected the outcome of the case or influence the verdict - Example: Refusal to allow evidence to be admitted that should have been, refusal of a witness to testify - When a reversible error has been made, the appellate court reverses the trial courts decision. (Send for a new trial) - Appellate course also may remand a case, meaning the court sends the trial back for further proceedings Setting a precedent: The process of examining other decisions for help in a new case - Precedent from other federal courts is strongest when the case involves federal issues - One state courts are not obligated to follow the precedent of another state courts Parties in the Judicial System (Civil Cases) Plaintiffs: Parties who initiate a lawsuit and are seeking recovery - Plaintiffs file their suits in the appropriate court Defendants (Respondent): The respondents from whom the plaintiff seeks relief from Lawyers Judges Name Changes on Appeal Appellant: Party who seeks a higher court to reverse a lower court decision Appellee: Party who won the trial and against whom the petitioner fills an appeal The concept of Jurisdiction - Both Parties to the case and subject of the case must be within the established powers of the court Jurisdiction: The authority or power of a court to make legal judgments - The subject matter of a case controls which court has jurisdiction - In personam Jurisdiction: Physical presence of jurisdiction Subject Matter Jurisdiction of Courts: The Authority over Content The Federal Court System Federal District Court: The general trial court of the federal system Limited to 3 types of cases they can hear - Those in which the United states is a party - Those that involve a federal question - Those that involve diversity of citizenship  - US is always tried in its own court, defendant or not - Most civil cases are in federal district court because plaintiff and defendant are from different states and their case involves damage claims in excess of $75,000. A state court can hear diversity cases as long as neither party chooses to exercise the right to a federal district court trial. - In diversity cases, state and federal courts have concurrent jurisdiction - Concurrent Jurisdiction: Two courts have the authority to hear the case, state and federal Federal courts decide controversies among citizens of different states for reasons that go back to fears about state court judges giving preferential or favorable treatment to citizens of their state. If the case is held in one sides state court, the opposite party may have an unfair advantage because of the location of the court. The Structure of the Federal District Court System - Each state has at least one federal judicial district, the number is determined by the population and caseload - The right of an appeal is automatic, so the appellate courts caseloads are large The U.S Supreme Court Highest court in United States; requires writ of certiorari for review A decision by the US court of Appeals is not the end of a case, one more appellate court is part of the federal system, the US Supreme Court. The supremes courts procedures and jurisdiction are slightly different. Writs of Certiorari: A request that the Supreme Court order a lower court to send up the record of the case for review - Granted because the case may present a major constitutional issue - When one state is suing another the US Supreme Court becomes the states trial court The State Court Systems State Trial Courts: General trial county Each state has its own group of “lesser courts” - Small claims court: civil cases with minimal damage claims are heard - Attorneys are not used in small claims courts  - The amount small claims is small: $200 to $25,000 is the typical range - Also known as county courts - Traffic courts: violations of city ordinances State Supreme Courts - If two counties within a state have a dispute, the state supreme court will take the trial to ensure fairness. In Personam Jurisdiction of the Courts: The Authority over Persons Requirements: Ownership of Property within the State - A party who owns real property in a state is subject to the jurisdiction of that state’s courts for litigation related to that property Volunteer Jurisdiction - A court has jurisdiction over a person who agrees to be subject to that court - Example: Within Contracts signed Presence in the State - Residence in that state (Corporations are residents of the states they are incorporated in) - “Minimum Contacts”: requires states to notify out-of-state defendants of a suit and determine that they have some contact with the state. - Examples: Shipping Products, Advertising Products Long-Arm Statutes: The Tools of Minimum Contacts - Long-Arm Statures: the power given to courts to extend their jurisdiction into other states Chapter 4: Managing Disputes: Alternative Dispute Resolution and Litigation Strategies Alternative Dispute Resolution: Methods of resolving legal disputes apart from the use of legal system Types of Alternative Dispute Resolution Arbitration: A neutral third party resolves a dispute between two parties Binding Arbitration: The decision of the arbitrator is final Nonbinding Arbitration: Preliminary step to litigation, If one party is not satisfied with the result of arbitration, the case can be litigated Mandatory Arbitration Parties can agree to mandatory arbitration, meaning parties cannot take court action first. Arbitration and Consumer Credit Contracts - The FAA permits mandatory arbitration in consumer contracts Arbitration Process - Arbitrator has 30 days to make a decision - In binding, the decision is final and cannot be reversed or modified Mediation: A process where both parties meet with a neutral mediator who listens and explains their position - Meadiator works to break down impasses and works to have parties agree on a solution - Completely Confidential Process - What is said to mediator cannot be used later in litigation if necessary Medbarb: Mediation Arbitration Minitrial: Parties have their lawyers present strongest aspects of their case to senior official from both companies in the presence of a neutral advisor. - At the end of the presentations, the neutral advisor is able to provide input, which are controlled by the parties. Such as what their judgement would be if it was a actual case - Minitrial is not binding Early Neutral Evaluation: Requires another attorney to meet with parties, receive an assessment of the case by both sides, then provide an evaluation of the merits of the case. - Renders a resolution to the case - The idea is to encourage settlement Peer Review: review by coworkers of the action taken against an employee - Popular between employers and employees - Panels of employees review document, and make decisions Litigation vs ADR: The issues and Costs Speed and Cost - Both are great reasons for companies to turn to ADR to resolve disputes Protection of Privacy - Dispute can be kept private Creative Remedies - Remedies can be created to help both parties, not just one Judge and Jury Unknowns - Bias within juries - Good cases can be lost despite excellent preparation - Arbitrators can be chose by their expertise and will not be swayed as easily by emotions Absence of Technicalities - ADR seems to more search for the truth - Parties have the opportunity to tell their stories When You Are in Litigation The only restriction on filing of a suit is that the plaintiffs claim of right must be based on some statutory law or common law The Trial Process 1. Pleadings (Complaint)  2. Discovery (Interrogatories, despotions) 3. Pretrial Work (Motions, Pretrial Conference) 4. Trial 5. Posttrial Work (Motions, Appeal) Petition (Complaint) - First step in a lawsuit - First document filed in a lawsuit that outlines plaintiffs claims of rights - Statutes of Limitations: the time limits unique to each state for filing a lawsuit - Statute for personal injuries: two years - Statute for limitation for contracts: four years - Class action suits: Suit filed by a group of plaintiffs who have the same cause of action - Derivative Suit: Shareholders sue a corporation to recover damages for actions taken by corporations The Summons - Second step in a lawsuit - Serves a defendant with a copy of the complaint, explaining their rights. - The rights included the opportunity to respond and the grant of a limited amount of time to respond The answer - The defendant must file an answer within the time limits allowed by the court or risk default. Usually 20 to 30 days - Default: A forefeit, because the defendant didn’t respond or failed to show Seeking Timely Resolution of the Case - If a suit is filed, does not mean it is going to trial - Motions: requests to the court that it take certain action - Motion for Judgement on the Pleadings: A defendants request to the court to move for judgement based on the appeal - Motion to Dismiss: a defendant formal request to dismiss a case - Motion for Summary Judgement: Request the court to rule the case without a full trial Discovery - Before a trial, the parties enegage ina madatory process of disclosing all relevant documents and other evidence - Lists of Witnesses, Tangible Evidence Requests for Admissions and Interrogatories - Request for Admissions: Ask the other side to deny or admit to certain facts - Interrogatories: Ask questions about the facts Despotions: Oral testimony of both parties or witnesses that are taken under oath but outside of the courtroom and before the trial Request for Production: Requires the other side to produce requested documents Resolutions of a Lawsuit: The Trial If parties do not agree to nonjury, then constitution carries a right to trial by jury The Trial Process Opening Statements and Burden of Proof - The summaries made by the attorneys of each party before evidence is presented - Burden of Proof: Controls who has the responsibility for providing what facts Presentation of the Case and Evidence - Direct Examiniation: Plaintiffs questions witness under oath to help their case - Cross-Examination: Defense questioning of plantiffs witnesses - Directed Verdict: A verdit provided by the judge made by motion for the defendant when one of the parties of the parties of the case does not offer sufficient proof for the claim Chapter 11. Contracts and Sales: Introductions and Formation Contracts are the private law of business, parties develop their own set of laws through contracts Sources of Contract Law (Common Law & Uniform Commercial Code) Common Law - The first law of contracts - This applies to contracts that have land or services as their subject matter Uniform Commercial Code - Set of uniform laws that govern commercial transactions - Different rules apply to contracts in different states due to common law - Governs contracts for the sale of goods for all states except Louisiana - UCC has a section sailed 2A leases, which applies to leases of goods Types of Contracts Bilateral Contract: Both parties promise to perform something vs. Unilateral Contract: One party issues a promise and the other party performs Express Contract: Written or Orally Agreed to Vs. Implied Contract: Arises from circumstances and not an express agreement (Ex: doctor for treatment of illness) Void Contract: Agreement that is illegal or against public policy, or one that lacks legal elements Vs. Voidable Contract: Can be unenforceable at the election of the parties Executed Contract: When parties have performed according to their promises Vs. Executory Contracts: Where the promise to perform is made but the actual performance has not been made Consumer Credit Contracts Discrimination in Credit Contracts - It is illegal to discriminate against an applicant for credit on the basis of race, color, religion, gender, marital status, or age - Debtors can recover actual damages for embarrassment and emotional distress for punitive damages up to $10,000 Credit Disclosures - Federal laws require the disclosure of all interest changers, points, and fees for all types of loans and credit contracts Controlling Credit Card Contracts - The practice of sending people credit cards is illegal without an application of one Formation of Contracts Offer - First step in the formation of a contract Requirements for a valid contract offer Intent to Contract versus Negotiation - Offeror must have proper intent to contract - Courts look at how a reasonable person would perceive the language and whether a contract was formed Certain and Definite Terms - Parties - The subject matter of the contract - Price - Payment Terms - Delivery Terms - Performance Times Termination of an offer by Revocation - Offers can be revoked by offeree anytime before acceptance (Revocation) - Revocation: Offeror notifies the offeree that the offer is no longer good - Option: A contract where the offeree pays the offeror for the time needed to consider the offer Rejection by Counteroffer under Common Law - An offer ends when the offeree does not fully reject an offer but reject a portion of it and requests modifications to it For nonmerchants, the additional terms in a counteroffer does not result in rejection, but the additional terms will not be a part of the contract. Acceptance: The offeree’s response Acceptance must be communicated to the offeror using the proper method of Communication, which can be controlled by the offeror or left to the offeree. Accepted by Stipulated Means: A required means of acceptance given the offerors Acceptance with No Stipulated Means: If the offerer does not stipulate, the offeree may use any means of communication of acceptance. Consideration: Something of value exchanged by the parties that distinguishes gifts from contracts. (Grandma offers you her car, not a contract but a gift) Contract Form: When a record is required Some contracts exist based on oral promise but must be evidenced by a record to be enforceable, these contracts are covered under the state of fraud. Common Law Statute of Frauds Types of Contracts required to be evidence under most state laws - Contracts for sale of property - Contracts cannot be performed within a year - Contracts to pay debt of another UCC Statute of Frauds Contracts for the sale of goods costing 500 or more must be evidenced by a record to be enforceable Exceptions to Statue of Frauds - Courts will enforce the oral contract if performance has already been made Chapter 12. Contracts and Sales: Performance, Remedies, and Collection Defenses in Contract Formation If one of acceptance, offer, or consideration is flawed, it is subject to contract defense. Contract Defense: Refers to a situation, term, or event that makes an otherwise valid contract invalid Capacity: the age and mental capacity to make contracts - Both parties must have the capacity for a valid contract - Contracts entered by minors are voidable Misrepresentation - When one part is not given full info by the other party about a contract - In the case of misrepresentation, the law allows rescission (setting aside a contract) as a remedy The following are required for innocent misrepresentation 1. Misstatement of a material fact (something that would affect someones decision) 2. Reliance by the buyer on that material misstatements 3. Resulting damages to the buyer Consumer Credit Contracts - Certain types of consumer credit contracts include a three-day cooling period. Meaning the buyer has 3 days to rescind the contract Duress - When a party is physically forced into a contract - If duress has occurred, the contract is voidable Undue Influence - When one party uses a close relationship with another party to gain contractual benefits - A confidential relationship must exist between parties, meaning they trust and have confidence in each other Contracts in Violation of Licensing Statutes  - In some cases contracts are created for someone not authorized to complete something legal Contracts in Violation of Public Policy - Contracts that violate fairness or encourage violation of public policy - Many firms include Exculpatory Causes to hold firms completely blameless for any accidents. - Exculpatory Clause: Clause to hold oneself harmless for one's own conduct Unconscionable Contract: One that gives all the benefits to one side and all the burdens on the other Contract Performace When Performance is Due - Due according to the times provided in the contract - Sometimes prescribed events must occur before the performance is required. - Conditions Precedent: Requirements that must occur before performance is required - Conditions Concurrent: Where one party performs as the other party does (exists in every contract) Standards of Performace - Substantial Performace: A performance that for practical purposes is accepted to be nearly equivalent to the performance required under the contract terms - Applies in construction contracts When performance is Excused - Impossibility: A scenario where the contract cannot be performed by the parties or anyone else - Under the UCC, performance can be excused in cases of Commercial Impracticability - Commercial Impracticability: if basic assumptions the parties made when they entered into the contract have changed Finding a Way to End Obligations under the Contract - Novation: Substituting someone out of a contract for someone else - Accord and Satisfaction: an agreement entered as settlement of a dispute debt Nonperformance and Nonpayment- The collection Remedies Making Sure Billing is Accurate The creditor must make take enforcement is to make sure the bills sent to the nonpaying consumer have compiled with all federal laws. Fair Credit Billing Act: Allows debtors to challenge the figures on credit card monthly statements - First, the debtor must notify credit within 60 days of receipt - The creditor has 30 days from time of receipt or written protest to acknowledge to debtor receipt of the protest - Creditor has 90 days to take final action Collection- Fair Standards for Obtaining Payment - Fair Dept Collection Practices Act: Controls debt collection When FDCPA applies - This applies to consumer debts and depts collectors - Debts for personal, home, or family purposes - FDCPA does not apply to original creditors collecting their own debts Fair Credit Reporting Act: Provides debtors some rights and protections regarding the credit information held by third parties about them Contract Remedies for Nonperformace Compensatory Damages: the amount requires to place a party in as good a position as before the contract breach Incidental Damages: the costs of collecting compensatory damages (news paper ad to sell a car but buyer refused to buy, buyer has to pay for cost of ad as well) Liquidated Damages: an agreement clause in a contract that pre-established and limits damages Consequential Damages: the damages a party to a contract owes to third parties as a result of a contract. - Example: Contractor must pay 200 extra every day for late build, but steel company has not met its deadline, the contractor may collect consequential damages from steel company.