03 14 2012 Constitution state and federal Separation of power congress makes laws president enforces laws judiciary interprets laws Federalism state has power to make law in certain areas Hold back government power Common law case law made and applied by judges Precedents decisions made in pervious cases are binding stare decisis let Statutes State statutes uniform acts Group of statues codes decision stand Treaties cannot be made by state Legislation congress and state Statue state or federal Ordinance local Executive orders presidential power Equity allows court to use discretion and apply justice along with common law Injunction forbids to perform an act or commands to perform an act Administrative regulations and agency decisions like statues but not made by elected Federal treaties and federal statues new law wins Statutes other legislative laws cant create conflicting statue only gaps body PRIORITY RULES Federal State Constitutions all law Administrative agencies common law Statues common law Judge made law is lowest level Law Criminal gov prosecutes fines and jail Civil person v person everything besides contract crime damages or court order Substantive rights and duties in society Procedural controls govt as they enforce substantive law realize rights Public power of government constitutional administrative criminal Private between private parties contract tort Jurisprudence description way of looking at law Realism law in books is less important than law in action behavior of public officials and judge Sociological jurisprudence looking at how law affects ordinary people Critical legal studies no law all politics Peace power freedom expectations growth justice protect Functions of Law TORTS Tort civil wrong not breach of contract State of mind conduct Wrongfulness Intent Recklessness Negligence Strict liability Intentional infliction of emotional distress IIED caused emotional distress Intentional torts Battery intent and follows through with harm Assault putting them in fear emotional distress False imprisonment intentional confinement Defamation false statements reputation o Libel written physical defamation o Slander all other defamation oral o Qualified privilege employers o Publication someone outside of parties hears must be false o Of a false defamatory completely false o Statements concerning another fact regarding another negligence or malice Invasion of privacy o Intrusion upon seclusion physical or nonphysical o Public disclosure of private facts can be true or false o False light publicity something misleading that harms party o Commercial appropriation of name or likeness using without consent Misuse of legal proceedings o Malicious prosecution wrongful criminal proceedings show you won o Abuse of process didn t have to win used legal process in illegal way Deceit fraud o Knowing misrepresentation lied Intentional Property Torts Trespass to land intrusion upon real property Private nuisance substantial unreasonable intended interference with their use of land doesn t have to be physical Conversion of personal property intentional control without consent acquisition removal transfer withholding possession destruction using Business Torts Unfair competition violating federal statute Intentional interference with contract or business relations valid contract hired with contract improper use to breach contract Intentional employment tort knowledge of dangerous condition harm would be certain employer required employee to go intent o OCEA Intentional interference with contract or economic advantage o Valid contract knowledge of contract intentionally interfered NEGLIGENCE STRICT LIABILITY Negligence Duty of care Breach of duty Causation of injury Damages Duty act like a reasonable person under the circumstances Reasonable person test o Compare with how reasonable person of ordinary prudence would have acted in situation flexible to case Breach of duty didn t act as responsible person would have Breach Reasonable foreseeability of harm Seriousness of harm Social utility of conduct Ease difficulty of avoiding the risk of harm Causation must prove that breach caused defendant to experience injury Actual cause direct cause of injury was breach of duty Proximate cause closeness between breach and injury it caused Causation link need to be link between breach and injury Damages Compensatory Damages o Personal injury physical bodily injury o Property damage o Economic loss lost profits medical bills etc o Pain suffering Punitive damages Eggshell plaintiff can t say plaintiff was too weak Negligence Per Se defendant s violation of statue may create breach of duty plaintiff can win if statute entails the person Plaintiff should have been protected from statue but suffered the harm the May be guilty for negligence just for breaking law that was supposed to protect Duties to persons on property premises liability Reasonable care for safety of invitees o Business visitor o Public invitees held open to public Later Acts liable for later events after breach if event was forseeable Intervening causes if was not forseeable then it absolves defendant of liability Res Ipsa Loquitur trial on causation and damages the thing speaks for itself Negligence Defense Contributory negligence plaintiff didn t exercise reasonable care for himself Comparative negligence recovery of harm proven damages Assumption of risk voluntary consent to danger implied assumption Strict Liability liable even with no intent Abnormally dangerous activities harm can t be eliminated by reasonable care Statutory strict liability must follow legislation Pluralistic Model of Law 03 14 2012 Policy purpose of law o Purpose fact worthy of judicial notice flexibility o Interpret law according to purpose Tradition history customs beliefs o Community customs historical beliefs behavior social cohesion o How it should be interpreted with traditions at the time Precedent case spare decisis o Judicial opinions cases stability o Applies to like cases stability in law Intent of lawmaker o What text meant to those who enacted it references about intent popular will o Intent of what the words meant history when phrasing Text word at issue o Legal text only in text objectivity o What common person on street would think it means cite dictionary If you cant make argument with one of these principles not good argument Can use all best arguments do use all Legal arguments Different sources Different evidence to discern meaning
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