Legal 225 Notes from Beginning to End
Legal 225 Notes from Beginning to End Legl 225
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This 12 page Bundle was uploaded by Nick Richmond on Friday January 29, 2016. The Bundle belongs to Legl 225 at Towson University taught by Robert C. Scott in Summer 2015. Since its upload, it has received 43 views. For similar materials see Legal Enviroment of Business in General at Towson University.
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Date Created: 01/29/16
LEGL 225 Notes to Midterm: - Law is power, essential and fascinating - Statutory Rape: any unwanted or wanted sexual conduct with a minor who is under the age of 18 - Ordinance: specific area designated on public streets in order to sell products - Sources of law: o Administrative law o Treaties o Constitution State constitution o Judicial Branch o Executive Branch o Legislative Branch o Executive orders o Court Orders Injunctions - Burden of Proof: beyond reasonable doubt o Criminal - Burden of Proof: preponderance of evidence o Civil - Briefs: 1. Facts of case 2. Contention of Plaintiff 3. Contention of Defendant 4. Issues 5. Decision 6. Rule of Law - Dissent o Devils Advocate - Law is different from morality - Jurisprudence o Legal Positivism o Legal Relations o Natural Law - Three Fundamental areas of law 1. Structure of the court systems 2. Civil lawsuits 3. Alternative dispute resolution 1. Arbitration a. Binding 2. Mediation a. Nonbinding 3. Settlement 4. Negotiation - Two classifications of law o Substantive law Create, defines and regulates rights and liabilities o Procedural Law Steps that are followed to enforce rights and liabilities - State Supreme Court o State Appellate Court General Trial Court - Specialty Courts o Juvenile Court o Probate Court o Family Law Court - Inferior Courts o Small claim court o Municipal court o Justice of the Peace - Jurisdiction: the power courts have to hear cases o Subjectmattered Jurisdiction: covers the type of preceding’s that the court holds o Original Jurisdiction: Trial court or court with authority to conduct the First preceding’s in the case o General Jurisdiction: has broad authority over different types of cases o Limited of Special Jurisdiction: authority to hear only particular cases o Appellate Jurisdiction: review the work of the lower court o Personal Jurisdiction: over the defendant, is the legal authority to require the defendant to stand trial, pay judgments and alike. - Federal Supreme Court o Federal Court of Appeals Federal District Court - Summons: courts written notice that a lawsuit has been filed against the defendant - Writ of cert - Rule of 4 - Steps of a lawsuit: o Commitment of a complaint A lawsuit begins with the filing of a complaint o Service of Process Plaintiff has the responsibility of notifying the defendant that the lawsuit has been filed o Defendant’s Response to the Pleadings Failure to appear or No response means a “Default Judgment” Defendants can make a motion to dismiss: a motion to dismiss is a request to the court to dismiss the lawsuit on the grounds that, even if everything the plaintiff said in the complaint were true, there is still no right of recovery A motion to dismiss is a demurrer Counter Claim: A defendant could also counter claim in the answer; which is asking the court for damages as a result of the dispute o Discovery Is the critical, pre trial opportunity for both parties to learn the strengths and weaknesses of the opponents case o Opening Statement o Closing Statement o Motion for New Trial Motion for judgment N.O.V. judgment not with standing the verdict - Deposition: the testimony of a witness taken under oath outside the courtroom - Interrogatories: written request for production of documents - Motion for summary judgment: if there is no disputed issue of a material fact in the case, either party can file a motion for summary judgment - Jury Selection o Challenge for cause: lawyer calls out lawyer and dismisses them o Preemptory cause - Pleadings: the documents that begin a lawsuit, consisting of the complaint, the answer, and sometimes a reply - Complaint: a short, plain statement of the facts alleged and the legal claims made - Class Action: One plaintiff Represents the entire groups of plaintiffs, including those who are unaware of the lawsuit or even unaware they are harmed - Adversary System - Seven Ethical Principles/ Theories: 1. Deontological Effects: the end does not justify the means 2. Divine Law: obeying God’s will 3. Utilitarianism: promoting the greater good for the greatest number of people 4. Egoism: promoting what is good for ME only 5. Duty Ethics: doing good in a particular way to do what is right/good/moral 6. Virtue Ethics: happiness, the good life 7. Ethical Relativism: acting in accord with groups, values, and principles - Ethics: your beliefs/thoughts of what can occur - Common Law: judge made law o It is the sum total of all cases decided by appellate courts. Still predominates in tort, contract and agency law, and it is very important in property, employment and some other areas - Stare Decisis - Precedent - Moot or Mootness: no case of controversy - Bystander Obligations: you have no duty to assist someone in peril unless you created the danger - Right: legal capacity to require another person to perform or refrain from performing an act - Duty: an obligation of law imposed on a person to perform or refrain from performing a certain act - Statutory Law: more law is created by statute than by the courts. o We elect the legislators who pass state statute; we vote for the senators and representatives who create federal statutes. - Statutory Interpretation: courts often called upon to interpret a statute, that is, to explain precisely what the language means and how it applies in a given case. - Plain Meaning Rule: when a statues words have ordinary, everyday significance, the court will simply apply those words - Administrative law - Subpoena: an order to appear at a particular place and time - Subpoena duces tecum: requires the person to produce certain documents or things - Adjudicate: to hold a formal hearing about an issue and then decide upon it - Supremacy Clause: makes the Constitution, and federal statutes and treaties. Shall be the Supreme Law of the Land - Takings Clause: A clause in the 5 Amendment which ensures that when any governmental unit takes private property for public use, it must compensate the owner - Substantive Due Process: a form of due process that holds that certain rights are so fundamental that the government may not eliminate them - 14 Amendment: Equal Protections Clause - Tort: violation of a duty imposed by the civil law o Civil Wrong o Tort comes from the Latin word “tortus” which means crooked, twisted and dubious o Torts are actions that are not strange, but crooked or civil wrongs. Some are actionable (punishable) Not actionable (you didn’t mean to do it) - Intentional Tort: a wrong doing in which you have to prove that person had intention to harm you - Negligence: four areas determine if a case is negligent or not: 1. Duty of Care 2. Breach of Duty of Care 3. Proximate Cause (Causation) 4. Damages to person, property or both - Strict liability: 1. An ABSOLUTE duty to make safe 2. Breach of absolute duty to make safe 3. Proximate Cause (Causation) 4. Damages to person property or both - False Imprisonment: the intentional detention of a person without that persons consent. o The detention may not to be for any specific period of time, for any detention against ones will is false imprisonment Intentional Tort - Intentional Infliction of emotion distress: an intentional tort in which the harm results form extreme and outrageous conduct that causes serious emotional harm - Defamation: tort is an untrue statement by one party about another party to a third party. Concerns false statements that harm someone’s reputation o Libel: written defamation o Slander: oral defamation - Trespass: intentionally entering land that belongs to someone else or remaining on the land after being asked to leave o A trespass to land is any unpermitted entry below/on/across/above the land of another - Conversion: taking or using someone’s personal property without consent - Subjective standard: a reasonable ordinary prudent person test - Fraud: injuring another person by deliberate deception - Contract Interference (tort): when parties are not allowed the freedom to contract without interference from third parties - Invasion of Privacy: the right of privacy is the right to be free from unreasonable intrusions into ones private affairs o Intrusion into peoples private affairs o Public disclosure, private facts o Cant use information for corporation advantage - Battery: intentional touching of another person in away that is harmful or offensive - Assault: an act that makes a person reasonably fear an imminent battery - Compensatory Damages: money intended to restore a plaintiff the position he was in before the injury - Single Recovery Principle: requires a court to settle the matter once and for all. o By awarding a lump sum of past and future expenses - Punitive damages: damages that are intended to punish the defendant for conduct that is extreme and outrageous - Tortious interference with a contract: an intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintiff - Intrusion: a tort in which a reasonable person would find the invasion of his/her life offensive - Duty of Due Care: each of us has a duty to behave a reasonable person would under the circumstances - Licensee: a person on another’s land for their own purposes but with the owners permission - Invitee: a person who has a right to enter another’s property because it is a public place or a business open to the public - Trespasser: a person on another’s property without consent - Res Ipsa Loquitur: the facts imply that the defendants negligence cause the accident o “The thing speaks for itself” Post Note Midterm Notes: 10/19 - Contract: A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. o A binding agreement between two people. (Basic definition) - Development of Contract law: Common Law; Judge Made Law, - All contracts do not gave to be in writing, they can be oral as well - The Statute of Frauds: if it is not in writing, then it doesn’t exist o Some contracts in the US have to be written in order to enact or enforce - Practically every business transaction affecting people is a particular way of a contract - Essential elements of a valid contract: o An Offer o Acceptance/ Agreement o Consideration Money Property (bargain for exchange) Promise o Legality o Capacity Age (status) Mental State (Mens rea) o Proper Form: some contacts have to be in writing to make it legitimate. If it is not in writing it can be under the Statute of Frauds - Is it an objective standard? o Did you have the intent to enter the contract, manifestation of a sent - True Promise: holding a promise to the full extent. - Loosery Promise: a promise made only if they need it, if they do not need it then you’re promise won’t be kept. - Types of Contracts: o Bilateral Contract: a promise made in exchange for another promise. Both parties agree to this contract, just a promise for a promise o Unilateral Contact: one party makes a promise that the other party can accept only by actually doing something Starting performance o Executory Contract: an agreement in which one or more parties has not yet fulfilled its obligations A contract is executory when it has been made but one or more parties have not yet fulfilled its obligations o Executed Contact: an agreement in which all parties have fulfilled their obligations Nothing remains to be done, it is executed to the max o Valid Contract: a valid contract is one that satisfies all of the laws requirements. The court can still throw it out even though all the required laws in that supposed contract o Voidable Contract: an agreement that may be terminated by one of the parties Law permits one party to terminate the agreement o Void Agreement: A contract that neither party can enforce, because the bargain is illegal or one of the parties had no legal authority to make it. Usually the agreement is illegal and one of the parties did not know that and made it illegal Has no legal effect from the beginning, it is void o Unenforceable Agreement: Occurs when the parties intend to perform a valid bargain, but they cannot because of some court issue o Implied Contract: a contract that is implied, they are not in writing/spoken but under certain conditions the law says it is implied. The words and conduct of the parties intended they started an agreement “Reasonable” o Express Contract: two parties explicitly state all the important terms of their agreement An express contract is one in which the agreement of the parties is manifested by their words, whether spoken or written. o Quasi Contract: not a true contract; is an obligation imposed by law An obligation of one party to another imposed by law independently of an agreement between the parties A service is rendered o Promissory Estoppel: the legal principle that a promise if enforceable by law when the promisor makes a promise to the promisee who relies on it for his or her detriment Plaintiff relied on In quasi contract cases the defendant received a benefit from the plaintiff - Quantum Meruit: as much as he deserves o A reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract - Terms of contracts must be certain and definite. - Classes of Contract: o Formal Contracts under seal Is executed by affixing a seal or making an impression on the paper Contracts of record Is an agreement or obligation that has been recorded by a court Negotiable instrument Is a contract. Like using your credit card or a cashier check - Common Law: judge made law - Uniform Commercial Code - Acceptance/Agreement: Offers and Acceptances: - Contracts are only valid if they have the meeting of the minds o Where one person makes an offer and the other person has the intent to accept that offer. o An offer is definite and is certain by both parties o Courts make objective decisions when it comes to offers and there legitimacy - Objective test: o Court make objective assessments - Statements that don’t amount to an offer o An invitation to bargain is not an offer o Difference between preliminary negotiation and an offer - Price Quotes o A price quote is generally not an offer o They are merely invitations to negotiate o Ordinally, a seller sending out circulars or catalogs listing prices is not regarded as making an offer to sell at those prices. - Letter of Intent o Do not create a legal obligation o In complex business negotiations, the parties may spend months discussing issues at hand and making sure that the other side is serious about negotiations. That party may create a letter of intent and that separates those who are serious and those who are not serious. o Usually, letters of intent do not create any legal obligations - Advertisement: not offers, only invitations to negotiate o Advertisement is generally not an offer - Auctions: o Placing an item up for auction is not an offer, it is merely a request for an offer o At an auction sale, the statements made by the auctioneer to draw forth bids or merely invitations to negotiate o If it has been announced that the sale was to be made “without reserve” the property must be sold to the person making the highest bid regardless of how low that bid may be. o In an auction “with reserve” bids are taken by the auctioneer as agent for the seller with the understanding that no contract is formed until the seller accepts the transaction - The terms of the offer must be definite, if they are vague, even if the offeree agrees to the deal the court still does not have enough information to enforce that contract. - Termination of offers: if an offer is terminated, it can never be accepted o Revocation An offer is revoked when the offeror “takes it back” before the offeree can accept An offer must be communicated to the offeree o Rejection If an offeree clearly indicates that he does not want to take the offer, then he has rejected it. If an offeree rejects an offer, the rejection immediately terminates the offer. o Expiration An offeror may set a time limit If the offer specifies no time limit, the offeree has a reasonable period in which to accept o By Operation of Law If an offeror dies or becomes mentally incapacitated, the offer terminates automatically and immediately. o Counteroffer A party makes a counteroffer when it responds to an offer with a new and different proposal A counteroffer is a rejection o Lapse of Time You have to accept the offer within a reasonable amount of time o Death or Disability of a Party Person who dies or who is not mentally incapacitated o Subsequent illegality What was once legal, but is now illegal can be terminated because of that issue o Destruction of the subject matter terminates the offer. o Clickwrap Contracts made online and when you click on an item. If you click on an item and you don’t want it, then oh well, because you have just agreed to pay for the purchase o Shrinkwrap A Shrinkwrap notice might require that before inserting a purchased CD into you computer, you must read and agree to all terms in the brochure. - An offer must be communicated with the offeree o If an offer demands acceptance in a particular method or manner, the offeree must follow those requirements o If the offer does not specify a type of acceptance, the offeree may accept in any reasonable manner and method - Mailbox rule: o A properly addressed, postage paid mail acceptance takes effect when the acceptance is placed in the control of the US postal service Acceptance is generally effective upon dispatch. Terminations are effective when received Acceptance is effective when received - Silence as acceptance o The offeree’s silence and failure to act can not be regarded as an acceptance o Acceptance to general rule: the fact that the items are not returned does not mean that they have been accepted. Based on the facts and the circumstances, you have an obligation to speak. - Consideration: o Money o Property (bargain for exchange) o Promise o Act: an action that a party was not legally required to take it in the first place o Forbearance: refraining from doing something that one has a legal right to do. - Legality: o Illegality o Unenforceable or illegal contracts: Illegal agreements: Violation of a statute Violation of public policy - Wages: a gambling contract is illegal unless it is a type of wagering specifically authorized by state statute - Insurance: anyone taking out a policy taking out from the life of another must have an insurable interest in that person. - Licensing Statute: when a licensing requirement is designed to protect the public, any contract made by an unlicensed worker is unenforceable - Usury: usury law prohibits law challenging excess interest on loans. o The illegal action or practice of lending money at unreasonably high rates of interest o Can be excessive - Credit card debt: can be excessive - Contracts that violate public policy: to be valid an agreement not to compete must be ancillary to a legitimate agreement. o Ancillary means that the non competition agreement must be part of a bigger agreement o Ancillary means to be part of the bigger picture - Contract of Adhesion: a related issue concerning adhesion contracts. Which are standard contracts prepared by one party and given to another on the “take or leave it” o Unequal bargaining power - Recognizance contract: A recorded obligation, entered into before a tribunal, in which an individual pledges to perfor m a specific act or to subscribe to a certain course of conduct. - Employment contract: is only enforceable is it is fair to the employer, employee and the general public. o “You can not compete in this same business for a year… or etc.” - Exculpatory clause: one that attempts to release you from liability in event to another party o Exculpatory clauses are common o An exculpatory clause is part of an agreement that relieves one party from liability. It is a provision in a contract that is intended to protect one party from being sued for their wrongdoing or negligence. o Is generally unenforceable when the parties have greatly unequal bargaining power - Unconscionable contracts o An unconscionable contract is one that is so onesided that it is unfair to one party and therefore unenforceable under law. It is a type of contract that leaves one party with no real, meaningful choice, usually due to major differences in bargaining power between the parties. - Capacity: o One party has the option to enforce or terminate an agreement o Concerns the legal ability of a party to enter a contract in the first place o Age (status) o Mens rea - Consent: refers to whether a contract or party fully understood what they were getting into and that they agreed to it. o Manifestation of a cent - Duress: contract under force/threat/without an option - Undue Influence: undue power influencing contract - In absence of statute requiring writing, a contract may be oral or written and has to be in writing to be legally enforceable. - Statute of frauds: plaintiff needs in writing to enforce contract if: o Cannot be performed in one year – to pay debt of another o Interest in land o Made by executor of estate (will) o Made in consideration of marriage o For sale of goods > or equal to $500 - Statute of Frauds: writing must contain: o Signed by defendant o State with reasonable certainty names of parties and all terms/promises - Parol evidence wont be allowed into evidence to change terms of a written contract o Purpose of Parol Evidence Rule: to say that written contract is the best evidence of intent - Promissory Estoppel: oral promises that should reasonably cause promisee to rely on it. Promisee is able to enforce - Collateral Promise: Promise to pay another’s debt - - Questions from the test: o Joe says to Megan, I promise to pay you 1500 if you paint my house. Megan begins to paints Joes house. She is half finished. At this point of time, the contract between the two is: Unilateral, Executory o An oral contract that is covered by the statute of frauds is: Unenforceable o Which of the following is necessary for the existence of an offer? Facts and circumstances that reasonably indicate offerors the intent to contract o Why is past consideration, not consideration? Not bargain for exchange - Case Brief: o Facts Katrina agreed to shoot in a move 600k up front, the rest deferred till after until 2.5 million Katrina does not want to do a nude scene Katrina wants 3 million Bob talks Katrina into the verbal contract, will send her it in writing later They shake hands on the deal: shook on 3million dollar deal o Contention of the Plaintiff Katrina agreed to a nude scene, 600k up front and the rest in a percentage up to 2.5 million o Contention of the Defendant Bob agreed to no nude scenes and 3 million o Issue Is this a valid contract? It was made verbally on Katrina’s last words as 3 million the deal. That is what they shook on o Decision Not a valid contract did not come up with the 600k upfront at that handshake. Also he agreed to 3 million, not 2.5 million o Rule of Law Procedural Notes After Second Test Chapter 8: Business Crimes - Civil v Criminal Crime o Criminal Burden of Proof: beyond reasonable doubt o Civil Burden of Proof: preponderance of evidence - Right to a Jury o Seventh Amendment - Classifications of crimes: o Felony All crimes punishable by one year or more o Misdemeanor All crimes punishable by less than one year or a fine - Basis of criminal liability o A crime generally consists of two elements: A mental state (Mens rea) An act or omission to act - Mens Rea (state of mind) - Entrapment - Warrant - Probable Cause - Exclusionary Rule: evidence obtained illegally can not be used at trial - Plain View Doctrine - Right to a lawyer o Sixth Amendment - 9th amendment o An amendment to the U.S. constitution, ratified in 1791 as part of the Bill of Rights, guaranteeing that the rights enumerated in the Constitution would not be construed as denying or jeopardizing other rights of the people. - Crime: o A crime is conduct that is prohibited and punished by a government. o Crimes are classified as common law or statutory law, according to their origin - Tort: o Harm caused by a deliberate action - In most crimes it is sufficient that the defendant voluntarily did the act that is criminal, regardless of motive or intent - Corporate Liability o Corporations are held responsible for the acts of there employees - White Collar Crime o Those crimes that do not use, or threatened to use, forced or violence or do not cause injury to persons or physical damage to property - Blue Collar Crime o “A street crime” o You use a weapon, use threat and use force - Conspiracy o Is an agreement between two or more persons to commit an unlawful act - Money Laundering o The act prohibits the knowing and willful participation in any type of financial transaction involving unlawful proceeds. - Counterfeiting o Is the making, with fraudulent intent, of a document or coin that appears to be genuine but it is not. - Forgery o Consists of the fraudulent making or material altering of an instrument, such as a check. - Perjury o Consists of knowingly giving false testimony, in a judicial proceeding after having been sworn or having given afferents to tell the truth. - Bad Checks o It is a crime to use or pass a check with intent to defraud with knowledge that there will not be sufficient funds in the bank. - Credit Card Crimes o It is a crime to steal a credit card or to possess the credit card of another person without that persons consent. - Embezzlement o It is the fraudulent conversion of another’s property or money by a person to whom it has been entrusted. - Lottery’s and Gambling o Lottery (Three Elements) There must be a payment of money or something of value for an opportunity to win A prize The prize must be offered by lot or by chance - Larceny o Is the wrongful or fraudulent taking and carrying away of the personal property of another by any person with a fraudulent intent to deprive the owner of such property. - Robbery o The taking of personal property from the presence of the victim by use of force or fear - Burglary o At common law, burglary was the breaking and entering during the night of the dwelling house of another with intent to commit a felony - Arson o At common law, arson was the willful and malicious burning of another’s dwelling - Computer crime o The phrase is used to refer to a crime that can be committed only by a person having some knowledge of the operation of a computer - Business criminals are treated the same procedurally as other criminals - Theft o A popular name for larceny o The fraudulent taking of personnel property belonging to another from his possession, with the intent to deprive the owner of the value to benefit the person taking it. - Bribery o It is the act of giving money, property, or any benefit to a particular person to influence that person’s judgment in favor of the giver. - Extortion o When a public officer, acting under the authority of the office, makes an illegal demand, the officer has committed the crime of extortion. - Blackmail o The making of demands that would be extortion if made by a public official. - Racketeering (Rico) o The law was designed primarily to prevent individuals involved in organized crime from investing in legitimate businesses, money obtained through racketeering. o Racketeering Influence and Corrupt Organization -
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