Bus Law Class Notes to Ch 9

8/7/2019 Bus Law Class Notes to Ch 9

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Class notes 1/19/2010:Social network good to see for a depositionAdministrative law affects business a lot more than other kinds of law.Chapter 1, 2, Week 2 - chapter 6 Week 3, 9, etc.Full schedule coming next timeAbout 10 questions per chapter.

4 testsHe has a friend that sells bankruptcy assets las vegas auction is the company name

Chapter 1:

stare decisis (pronounced ster-ay dih-si-ses) A Latin phrase meaning to stand on decided cases.

administrativeagency

A federal, state, or local government agency established to perform a specific function. Administrative agencies areauthorized by legislative acts to make and enforce rules to administer and enforce the acts.

administrativelaw

The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) inorder to carry out their duties and responsibilities.

allege To state, recite, assert, or charge.

analogy In logical reasoning, an assumption that if two things are similar in some respects, they will be similar in other

respects also. Often used in legal reasoning to infer the appropriate application of legal principles in a case beingdecided by referring to previous cases involving different facts but considered to come within the policy underlyingthe rule.

appellant The party who takes an appeal from one court to another.

appellee The party against whom an appeal is takenthat is, the party who opposes setting aside or reversing the judgment.

binding authority Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes,and regulations that govern the issue being decided, as well as court decisions that are controlling precedentswithin the jurisdiction.

breach To violate a law, by an act or an omission, or to break a legal obligation that one owes to another person or tosociety.

case law The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpretjudicial precedents, statutes, regulations, and constitutional provisions.

case on point A previous case involving factual circumstances and issues that are similar to the case before the court.

chancellor An adviser to the king at the time of the early king's courts of England. Individuals petitioned the king for reliefwhen they could not obtain an adequate remedy in a court of law, and these petitions were decided by thechancellor.

citation A reference to a publication in which a legal authoritysuch as a statute or a court decisionor other source can befound.

civil law The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminalmatters.

common law That body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to alegislature.

constitutional

lawLaw that is based on the U.S. Constitution and the constitutions of the various states.

court of equity A court that decides controversies and administers justice according to the rules, principles, and precedents ofequity.

court of law A court in which the only remedies that could be granted were things of value, such as money damages. In theearly English king's courts, courts of law were distinct from courts of equity.

criminal law Law that defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actionscommitted against society for which society demands redress.

cyberlaw An informal term used to refer to all laws governing electronic communications and transactions, particularly thoseconducted via the Internet.

Cybernotary A legally recognized authority that can certify the validity of digital signatures.


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damages Money sought as a remedy for a breach of contract or for a tortious act.

defendant One against whom a lawsuit is brought; the accused person in a criminal proceeding.

defense Reasons that a defendant offers in an action or suit as to why the plaintiff should not obtain what he or she isseeking.

equitable maxims General propositions or principles of law that have to do with fairness (equity).

executive agency An administrative agency within the executive branch of government. At the federal level, executive agencies arethose within the cabinet departments.

historical school A school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discoverwhat the principles of contemporary law should be.

independentregulatoryagency

An administrative agency that is not considered part of the government's executive branch and is not subject to theauthority of the president. Independent agency officials cannot be removed without cause.

jurisprudence The science or philosophy of law.

laches The equitable doctrine that bars a party's right to legal action if the party has neglected for an unreasonable lengthof time to act on his or her rights.

law A body of enforceable rules governing relationships among individuals and between individuals and their society.

legal realism A school of legal thought that was popular in the 1920s and 1930s and that challenged many existingjurisprudential assumptions, particularly the assumption that subjective elements play no part in judicial reasoning.Legal realists generally advocated a less abstract and more pragmatic approach to the law, an approach that

would take into account customary practices and the circumstances in which transactions take place. The schoolleft a lasting imprint on American jurisprudence.

legal reasoning The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previouscases.

natural law The belief that government and the legal system should reflect universal moral and ethical principles that areinherent in human nature. The natural law school is the oldest and one of the most significant schools of legalthought.

opinion A statement by the court expressing the reasons for its decision in a case.

ordinance A law passed by a local governing unit, such as a municipality or a county.

petitioner In equity practice, a party that initiates a lawsuit.

plaintiff One who initiates a lawsuit.

positive law The body of conventional, or written, law of a particular society at a particular point in time.positivist school A school of legal thought whose adherents believe that there can be no higher law than a nation's positive lawthe

body of conventional, or written, law of a particular society at a particular time.

precedent A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similarfacts.

procedural law Rules that define the manner in which the rights and duties of individuals may be enforced.

public policy A government policy based on widely held societal values and (usually) expressed or implied in laws orregulations.

remedy The relief given to an innocent party to enforce a right or compensate for the violation of a right.

remedy at law A remedy available in a court of law. Money damages are awarded as a remedy at law

remedy in equity A remedy allowed by courts in situations where remedies at law are not appropriate. Remedies in equity are based

on settled rules of fairness, justice, and honesty, and include injunction, specific performance, rescission andrestitution, and reformation.

reporter A publication in which court cases are published, or reported.

respondent In equity practice, the party who answers a bill or other proceeding.

sociologicalschool

A school of legal thought that views the law as a tool for promoting justice in society.

statute oflimitations

A federal or state statute setting the maximum time period during which a certain action can be brought or certainrights enforced.

statutory law The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

substantive law Law that defines the rights and duties of individuals with respect to each other, as opposed to procedural law,


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which defines the manner in which these rights and duties may be enforced.

syllogism A form of deductive reasoning consisting of a major premise, a minor premise, and a conclusion.

uniform law A model law created by the National Conference of Commissioners on Uniform State Laws and/or the AmericanLaw Institute for the states to consider adopting. If the state adopts the law, it becomes statutory law in that state.Each state has the option of adopting or rejecting all or part of a uniform law.

Class Notes from 1/24/2010

James Patterson wrote books about people flying?

Definition of law consists of enforceable rules governing relationships among individual and betweenindividual and their society

Different schools of Jurisprudential (the science or philosophy of law) thoughto Natural law based on the fact that inherent universal principals exist (system of moral and

ethical principals that can be discovered through reason) AKA jurisprudence. Dates back toAristotle. Declaration of Independence

o Positivist The highest laws of the land is what laws are passed. Morality, good or bad, is

irrelevant. The laws of a land apply only to the citizens of that land. Nazi war criminals were notcriminals based on the laws in Germany at the time.

o Historical school of law focuses on the origin and history of the legal system. Laws that have

proven to be historically workable. Emphasizes the evolutionary process of the law. What legaldoctrines have withstood the test of time?

o Legal realism aka sociological school the view of what the judges do is what really forms the

law. Law is just one of many institutions in society and that it is shaped by social forces andneeds. Judges need to take social and economic realities into consideration because the law cannever be applied with total uniformity since judges are unique individuals they will obviouslybring different reasoning processes to the same case.

Section 2: areas law affects businesso Personnel, fire, pay, workers comp, safety, OSHA,

o

Knowledge of ethics in decision making is expected of business owners knowledge of what isconsidered right and wrong behavior. Not just is a decision legal, but is it ethical.o Many laws may affect a single transaction, e.g. contract law, sales law, negotiable instrument

laws, etc.

Section 3: sources of lawo Primary sources

U.S. constitution: supreme law of the land. 10th amendment reserves for the states allpowers not granted to the federal government. Federal laws supersede state constitutions.

State constitutions: supreme law of the state (except federal laws and US constitution)

Statutory law Congress law (federal) and state legislatures (statutes) & municipal,county, city governments (laws, rules, or orders) (ordinances) e.g. zoning, building and

safety codes. Local laws cant violate state or US constitutions. Uniform commercial code recommendation from legal scholars and lawyers

formed Nation Conference of Commissioner on Uniform State Laws (NCCUSL)to draft uniform laws for states to model their commerce laws after. Statelegislatures choose what do adopt, reject, or modify. Hence not totally uniformMost ambitious of all uniform laws was Uniform commercial code (UCC). Issues1952. Facilitates commerce among the states.

Administrative law most businesses have to deal with this type of law these have theforce of law but the laws are not specifically passed or written by congress.

From OSHA, SEC, IRS agency comes up with the rules and regulations.


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2 types of federal agencies. Executive agencies subject to presidentialappointment and removal. Independent agency terms of officers are for a fixedtime and cant be removed without just cause. State and local agencies usuallymirror federal ones and federal agency rules take precedence over local ones. Stillin the Executive branch of government.

o Secondary sources of law

Restatements of the law, summarization articles, law encyclopedias, treatises, law books

o Case Law and Common Law Doctrines (judge made law based on interpreting and applying the

laws)

Doctrines and principals announced in cases. Govern all areas not covered by statutory oradministrative law

Section 4:o American law mostly based on English common law from unification in 1066 in medieval

Englando 2 systems of court with 2 types of remedy can now do this in one court

Courts of law (monetary relief)

Land, money, cattle

Judges applied facts and laws Courts of equity (non-monetary relief), based on notions of fair dealings

Injunction gets them to stop the action

Get out of a contract

Stare Decisis stand on the decisions of the past, common law,

Makes things predictable

Increases judicial efficiency

Judge made law based on precedent, but can be incorrect. Must be based onbinding authorities such as statues

Lot of first impression laws regarding the Internet new laws with noprecedent

Stare Decisis and legal reasoning IRAC 4 things the judge must address in hisdecision. 1. Key facts and issues 2. Rules of law that apply 3. How the rules oflaw apply to these facts and circumstances. 4. What conclusion should be drawn.

o Deductive reasoning look for logical relationships

o Linear reasoning proceeds from one point to another

o Reasoning by analogy compare a different case

o Section 5: common law today

Common law today governs transactions not covered by statutory law

Restatement of the law

By the American law institute

Summarize the common law of most stateso Section 6: classification of law

Every type of law will be either:

Civil or criminalo Civil: relief available when persons rights are violated or a person does

not fulfill their duty. Between persons and governments. Any person orgov. against any other person or gov.

o Criminal: wrongs against the public as a whole. Acts specifically

prohibited.

Substantive or Procedural


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o Substantive: pertaining to legal rights and obligations, rights and

obligations for others to obey

Procedural: delineate the methods of enforcing the rights established bysubstantive law. Things you have to do to be eligible to pursue the law

Public or private

Cyber law traditional laws applied in electronic cases

Civil vs. criminal civil is a fine, criminal is maybe jailo Section 8: Learn citations mostly federal and appeals courts are in the registers

o Test questions from chapter 1:

o


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Chapter 2:

in personamjurisdiction

Court jurisdiction over the person involved in a legal action; personal jurisdiction.

in remjurisdiction

Court jurisdiction over a defendant's property.

voir dire (pronounced vwahr deehr) A French phrase meaning, literally, to see, to speak. In jury trials, the phrase refers tothe process in which the attorneys question prospective jurors to determine whether they are biased or have anyconnection with a party to the action or with a prospective witness.

writ of certiorari (pronounced sur-shee-uh-rah-ree) A writ from a higher court asking the lower court for the record of a case.

affidavit A written or printed voluntary statement of facts, confirmed by the oath or affirmation of the party making it andmade before a person having the authority to administer the oath or affirmation.

affirmativedefense

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bringan action. An example is the running of the statute of limitations.

answer Procedurally, a defendant's response to the plaintiff's complaint.

bankruptcy court A federal court of limited jurisdiction that handles only bankruptcy proceedings. Bankruptcy proceedings aregoverned by federal bankruptcy law

brief A formal legal document submitted by the attorney for the appellantor the appellee (in answer to the appellant'sbrief)to an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of thecase, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the

arguments on the client's behalf.

closing argument An argument made after the plaintiff and defendant have rested their cases. Closing arguments are made prior tothe jury charges.

complaint The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filedwith a court, initiates a lawsuit.

concurrentjurisdiction

Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can beheard in either a federal or a state court.

Concurrentownership

Joint ownership.

counterclaim A claim made by a defendant in a civil lawsuit that in effect sues the plaintiff.

cross-

examination

The questioning of an opposing witness during a trial.

default judgment A judgment entered by a court against a defendant who has failed to appear in court to answer or defend againstthe plaintiff's claim.

deposition The testimony of a party to a lawsuit or a witness taken under oath before a trial.

directexamination

The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney'sclient.

discovery A phase in the litigation process during which the opposing parties may obtain information from each other andfrom third parties prior to trial.

diversity ofcitizenship

Under Article III, Section 2, of the Constitution, a basis for federal court jurisdiction over a lawsuit between (1)citizens of different states, (2) a foreign country and citizens of a state or of different states, or (3) citizens of a stateand citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before afederal court can take jurisdiction in such cases.

e-evidence A type of evidence that consists of computer-generated or electronically recorded information, including e-mail,voice mail, spreadsheets, word processing documents, and other data.

exclusivejurisdiction

Jurisdiction that exists when a case can be heard only in a particular court or type of court, such as a federal courtor a state court.

federal question A question that pertains to the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basisfor federal jurisdiction.

Federal Rules ofCivil Procedure(FRCP)

The rules controlling procedural matters in civil trials brought before the federal district courts.

hearsay An oral or written statement made out of court that is later offered in court by a witness (not the person who madethe statement) to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible as


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evidence.

interrogatories A series of written questions for which written answers are prepared and then signed under oath by a party to alawsuit, usually with the assistance of the party's attorney.

judicial review The process by which courts decide on the constitutionality of legislative enactments and actions of the executivebranch.

jurisdiction The authority of a court to hear and decide a specific action.

justiciablecontroversy

A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfiedbefore a court will hear a case.

long arm statute A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant musthave minimum contacts with that state for the statute to apply.

motion A procedural request or application presented by an attorney to the court on behalf of a client.

motion for adirected verdict

In a jury trial, a motion for the judge to take the decision out of the hands of the jury and direct a verdict for themoving party on the ground that the other party has not produced sufficient evidence to support his or her claim;referred to as a motion for judgment as a matter of law in the federal courts.

motion for ajudgment as amatter of law

In a federal court, a party's request that the judge enter a judgment in her or his favor before the case is submittedto a jury because the other party has not presented sufficient evidence to support the claim. The state courts referto this request as a motion for a directed verdict.

motion for a newtrial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence,prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice.

motion forjudgment n.o.v. A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the juryverdict against him or her was unreasonable and erroneous.

motion forjudgment on thepleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely onthe pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

motion forsummaryjudgment

A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based onevidence outside the pleadings and will be granted only if no facts are in dispute.

motion todismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has nobasis in law) or that there are other grounds on which a suit should be dismissed.

openingstatement

A statement made to the jury at the beginning of a trial by a party's attorney, prior to the presentation of evidence.The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.

pleadings Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defensesinvolved in the litigation; the complaint and answer are part of the pleadings.

pretrialconference

A conference, scheduled before the trial begins, between the judge and the attorneys litigating the suit. The partiesmay settle the dispute, clarify the issues, schedule discovery, and so on during the conference.

pretrial motion A written or oral application to a court for a ruling or order, made before trial.

probate court A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person'sestate.

question of fact In a lawsuit, an issue involving a factual dispute that can only be decided by a judge (or, in a jury trial, a jury).

question of law In a lawsuit, an issue involving the application or interpretation of a law; therefore, the judge, and not the jury,decides the issue.

rebuttal The refutation of evidence introduced by an adverse party's attorney.

rejoinder The defendant's answer to the plaintiff's rebuttal.

relevant evidence Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence.Only relevant evidence is admissible in court.

rule of four A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at leastfour justices approve of the decision to issue the writ.

rules of evidence Rules governing the admissibility of evidence in trial courts.

service ofprocess

The delivery of the complaint and summons to a defendant.

small claimscourt

Special courts in which parties may litigate small claims (usually, claims involving $5,000 or less). Attorneys are norequired in small claims courts, and in many states attorneys are not allowed to represent the parties.


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standing to sue The requirement that an individual must have a sufficient stake in a controversy before he or she can bring alawsuit. The plaintiff must demonstrate that he or she either has been injured or threatened with injury.

summons A document informing a defendant that a legal action has been commenced against him or her and that thedefendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered bya sheriff or any other person so authorized.

venue (pronounced ven-yoo) The geographical district in which an action is tried and from which the jury is selected.

verdict A formal decision made by a jury.

writ of execution A court's order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell

any of the debtor's nonexempt real or personal property. The proceeds of the sale are used to pay off thejudgment, accrued interest, and costs of the sale; any surplus is paid to the debtor.

Chapter 2: court systemWhat courts have the power to hear what cases and whenFederal courts are not necessarily superior to state courtsJudge does not have to agree with the jury. He can say thanks, will throw out the verdict and impose their own.

Jurisdiction is who has the authority to hear the case and decide a specific action. Limited to the area ofthe state they are in

o Personal jurisdiction authority of a court to hear case involving the particular parties before

it. Long arm Statue: court can exercise personal jurisdiction over out-of-state defendants basedon activities that took place within the state

o Subject matter jurisdiction authority of a court to hear the particular dispute before it

o Original jurisdiction trial courts, and for federal is district courts

o Limited vs. general jurisdiction

Probate divide assets after death,

Traffic -

bankruptcy only federal court handles bankruptcyo Concurrent or exclusive two courts have jurisdiction of subject matter with same dispute this is

concurrent. If only one court, it is exclusive.o Federal judges are appointed for life

o Federal jurisdiction: when a plaintiffs case is based on U.S. constitution, federal statues or

regulation, or treaty between US and another country, a federal question arises which is underthe federal court system.

o Diversity of citizenship puts the case in federal court and applies if:

Must be more than 75,000 and

Lawsuit is between

Plantiff and defendant are residents ofdifferent stateso Corporation is a resident of both its state of incorporation, and state of its

principal place of business, if the two are not the sameo For this, the laws of the state in which the court resides are applied rather

than federal law. Foreign country and citizens of one or more states or

Citizens of a state and citizens or subjects of a foreign country

Jurisdiction in Cyberspace

If you are in New Hampshire and selling in Nevada and have ads in Nevada then you can be sued inNevada. If you have a passive ad and arent aggressively marketing in Nevada then you have to go to NJto sue

Does the court have jurisdiction? (long arm statute)

Venue and standing:


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o Jurisdiction deals with authority over persons or property and subject.

o Venue within a jurisdiction, most appropriate (or convenient) location for a trial to be held and

from which a jury will be selected. Where did the crime occur, where do the parties in the civillawsuit reside (usually defendant),

o Standing to sue: an individual or entity must have a sufficient stake in the controversy before he,

she, or it may bring suit

Whether standing exists, in turn, will depend in part on whether there is a justice ablecontroversy that is, a real and substantial controversy, not one that is hypothetical oracademic.

State courts:

Trial courts litigation starts, general or limited jurisdiction.o Divorce adoption, criminal, ticket municipal courts, small claims court,

Appellate courtso Appellate courts review questions of law not questions of fact

o Decisions of states highest (court of last resort) or state Supreme Court are final unless they

implicate the U.S. constitution or federal statue. Then they are subject to review by the U.S.Supreme Court.

Federal courts: U.S. District court (trial court) then

U.S. Circuit courts of appeals Nevada is in the 9th circuit court of appeals. 12 circuit courts and a 13th

for specific issues then

U.S. Supreme Court writ of certiorari (says we the supreme court will hear the case) which requires atleast four justices agree the case merits the courts review

o Majority opinion must be written

o Minority opinion must be written

Pre-Suit Considerations

Consulting with an attorney: consult with a qualified attorney

Legal fees: investigating and prosecuting or defending the case, maybe appeal, and how those fees willbe paid

o Fixed Fees: flat fees excluding expenses for expert witnesses, depositions

o Hourly Fees: based on the attorneys time, depending on what he was doing e.g. - researching,

engaging in discovery, or before the courto Contingent Fees: typically set as a percentage or declining percentage, of the damages recovered

in the event of a successful outcome

Settlement Considerations: the limited time and money a client has to invest in a lawsuit, particularlywhen the remedy the client might recover is also limited, may suggest trying to resolve the disputewithout filing suit or early in the litigation process.

Pleadings: written docs that explain the situation of the case

Plaintiffs complaint/petition: claims asserted by the party seeking relief

Service of process notifying the defendant of a lawsuit (being served). Plaintiff must prove delivery ofa copy of complaint and summons (notice to appear in court). If defendant doesnt answer then a defaultjudgment against defendant is issued (provided all rules and regulations were met for the service).

Motion to dismiss usually filed by defendant for lack of proper service, lack of personal jurisdiction,failure to state a claim for which relief can be granted. If granted, plaintiff can file a restatement of theclaim.

Defendants answero Respond to claims set forth in the Complaint or Petition where appropriate


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o Affirmative defense (affirm the facts stated) and why the claims fail or are limited as a matter of

law or equity or introduce new factso Asserts counter claims (deny stated facts and present a different set of them)

o If defendant does not answer, plaintiff may seek a default judgment

If defendant asserts a counter claim, the plaintiff may file a reply

Motion for judgment on the pleadings: only when facts are not in dispute and it is only a question of lawand no affirmative defense was raised. Only pleadings are considered.

Motion for summary judgment only granted when there no facts in dispute and it is just a question ofhow the law applies. Can be filed at any time during a trial. Additional (admissible) evidence can beused to decide this like affidavits, contracts, documents.

Discovery research and informationo Depositions: sworn testimony, recorded by a court reporter and often videotaped, of the parties

and other key witnesses, can be gathered before trial and of witness who cannot be compelled toattend and testify at trial, more candid off the cuff answers.

o Interrogatories: written questions under oath, could be financial information, prepared statements

with the help of attorney and research, usually the plaintiff or defendanto Requests for admission admit certain facts so they are not in dispute instead of having to prove

something that both parties already know to be true.

o Requests for documents, objects, or entry types of docs and things related to trial or requestingpermission to enter premises

o Requests for examination when the physical or mental condition of a party is in question the

opposing party may seek a third-party physical or mental examo Electronic discovery rules allow for the parties to get data compilations e-evidence

Pretrial matterso Pretrial conference: judge sits down to consider settlements, and rules for trial. No jury is called

a bench trial.o Rules on all pending motions

Bench trial has no jury and judge decides questions of fact and law

Jury trial: Federal law gives right to trial by jury, most states have the same rules. Judge

assumes no jury unless specifically requested. Judge decides questions of law, jurydecides questions of fact including the amount of damage if any due the plaintiff

o Jury selection: some 12 person, most 6 person. Voir dire is process of jury selection. May

challenge limited # of juror peremptorily for no reason and then challenge others for just cause.Rules of evidence govern what kind of evidence is allowed to ensure reliability.

Evidentiary matterso Relevance: tends to prove or disprove a fact or how probably a fact or action is.

Highly relevant may be disallowed because it is inflammatory (dead body pictures)o Hearsay statement about what someone else said not usually allowed

There are numerous exception indeed, most law students spend a full semester on that

Stages of trial Opening statement: Their version of the facts and how the evidence supports it.

Witness examination: party with burden of proof presents its witnesses first judge tries to limit thenumber of the same witnesses who say the same thing in pre-trial. Types of questions and manner ofasking are limited by the rules of evidence.

o Direct examination: questioning of a witness by the party who called the witness

o Cross-exam: opposing counsel questions them

o Re-direct: calling counsel and Re-Cross: opposing counsel


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Motion for judgment as a matter of law (directed verdict): defendant asks judge to make a ruling rightafter the prosecution is done on the grounds that they have not proven anything and to take the decisionout of the jurys hands. Only granted if there is insufficient evidence to raise a question of fact.

Defendant presents evidence and witnesses.

Plaintiff can present a rebuttal to the evidence presented (including additional evidence)

Defendant can then refute that evidence in a rejoinder

At the end of the defendants case, Motion for judgment as a matter of law (directed verdict)

Closing arguments plaintiffs counsel argues first. Defense council gets the last say. They say why theevidence supports their claims and urges for a verdict in their favor even in a judge only trial and try toreveal shortcomings in opponents case.

Jury instructions: jury can consider the following info, counselors for both parties submits proposedinstructions on the laws that pertain to the case, civil trial the burden of proof is a preponderance of theevidence (factual claim is more likely to be true). Criminal trials burden of proof is beyond a reasonabledoubt.

Verdict after deliberating the judges instructions and the evidence, the jury renders a verdict settingforth its findings and the amount of damages. Sometimes they will poll the jury making every jurorstand up and state the verdict.

Post trial motions

Motion for a new trial set aside jury verdict. Only happens if the judge believes the jury was in error(law mistake, misinterpretation of evidence, new evidence, misconduct) but doesnt think the other sideshould win either.

Motion for judgment notwithstanding the verdict (N.O.V.) if jurys verdict or award was erroneous,then judge sets aside the verdict and enters a verdict in favor of the other party.

If trial court will not grant any motions, Court will enter judgment based on the jurys verdict

Appellate procedure: appeal can be filed on any ruling on any motion, jurys verdict, award, etc.

Notice of appeal: filed with clerk of trial court. That person is the appellant or petitioner

Record of appeal is sent to appeals court, has everything from the trial including transcript and bothlawyers file a brief

Sent to a higher court: reviews matters of law only. Will reverse facts on rare occasions but must begrossly negligent. Have to give weight to lower courts decision.

o Affirm

o Reverse: if trial court erred or jury instructions wrong without further proceedings

o Remand back to trial court for further proceedings consistent with its opinions on the matter

o Reverse or remand part of it

o Modify decision like reduce jurys award

Higher courts (state or US Supreme Court) have discretionary power to hear the cases they want to. It isa privilege, not a right for your case to be accepted by a higher court.

Enforcing judgment (collecting):

Enforcing the judgment: writ of execution will force the payment of the judgment if the loser of the trialdoes not pay promptly. Seize and sell assets to pay the debt or transfer the asset to the plaintiff.

o How much money do they have available of assets to satisfy the damages sought.


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Chapter 6:

Vocabulary:

adjudicate To render a judicial decision. In the administrative process, the proceeding in which an administrative lawjudge hears and decides on issues that arise when an administrative agency charges a person or a firmwith violating a law or regulation enforced by the agency.

adjudication The process of adjudicating. See Adjudicate

administrative

law judge (ALJ)

One who presides over an administrative agency hearing and who has the power to administer oaths, take

testimony, rule on questions of evidence, and make determinations of fact.bureaucracy A large organization that is structured hierarchically to carry out specific functions.

enablinglegislation

A statute enacted by Congress that authorizes the creation of an administrative agency and specifies thename, composition, purpose, and powers of the agency being created.

final order The final decision of an administrative agency on an issue. If no appeal is taken, or if the case is notreviewed or considered anew by the agency commission, the administrative law judge's initial orderbecomes the final order of the agency

initial order In the context of administrative law, an agency's disposition in a matter other than a rulemaking. Anadministrative law judge's initial order becomes final unless it is appealed.

notice-and-commentrulemaking

An administrative rulemaking procedure that involves the publication of a notice of a proposed rulemaking inthe Federal Register, a comment period for interested parties to express their views on the proposed rule,and the publication of the agency's final rule in the Federal Register.

rulemaking The process undertaken by an administrative agency when formally adopting a new regulation or amendingan old one. Rulemaking involves notifying the public of a proposed rule or change and receiving andconsidering the public's comments.

Class notes 1/31/2010:

Administrative agencies:o Executive agencies - Some subject to presidents authority

o Independent agencies are appointed by president but cant be removed without just cause

o Administrative agencies constitute the bureaucracy and are sometimes referred to as the 4 th

branch of government ;but are really part of the executive branch.o Congress can affect the agencies by not funding them or passing additional legislation relating

the agencies Congress passes legislation to enable an agency enabling legislation has powers, functions, purpose,

name. Agency cant do more than the enabling legislation allows them to do.o Agency does all the details to create the rules

o Was gap filling agency agencies would fill in all the gaps of laws

o Pumped up prices and wages, national recovery and industrial act

Pres came up with fair trade codes during post depression era.

Supreme court overruled themo

Judicial review of agency actions

o Federal court can hold unlawful and set aside actions the court finds to be arbitrary, capricious,and abuse of discretion or otherwise not allowed in accordance with law upon appeal.

Among the factors consider include whether the agency:

Failed to rationally explain its action

Changed its prior policy without justification

Considered legally inappropriate factors

Ignored a relevant factor or

Rendered a decision plainly contrary to the evidence


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o Chevron deference: federal court should defer to an agencys reasonable interpretations of the

scope of its legal authority unless the agencys interpretation I contrary to the unambiguouslanguage of a federal statue addressing the agencys authority.

Administrative rule Making:

Notice of proposed ruling in the Federal Register to have a hearing

Comment period allow time for public comment. Doesnt have to respond to all but to significant ones. Exparte (off the record should also be considered.

Final rule published in federal register. Public must then abide by it.

Interpretive rules they can say that the rule was part of the original intent of the rule that was publishedand it was just a clarification. They are trying to interpret what congress wanted. These dont have theforce of law.

Agency investigations

Most businesses comply with the agencies.o If you dont they get a subpoena compelling them to cooperate

Subpoena duces tecum provide records

Subpoena ad testificatum provide testimonyo Search warrant compelling to make available

To decide if agency overstepping bounds courts consider

o Whether the investigation has a legitimate purposeo The relevance of the information sought

o The specificity of the agencys demand for testimony or documents

o The burden the demand places on the entity

Agency adjudication

Agency takes action against an entity to and tries to seek voluntary compliance. If that fails:o Formal complaint is filed, answer must be submitted

o Discovery

o An Administrative Law Judge of that agency such as OSHA hold an administrative law judge

trialo ALJ issues initial order can be appealed to board of commissioners

o Can be appealed to federal circuit court of appeals, supreme court

o After appeals, then the final order is in effect

Limitations on agency powers

Judicial controls: subject to judicial review. Must have:o Standing to sue

o Actual controversy

o Exhausted all administrative remedies

Courts defer to agency fact finding actions and generally review agency decisions forprocedural irregularity, failure to interpret, lack of evidence, constitutional issues, abuseof power

Executive control can veto money funding Legislative controls: stop or reduce money, review enabling legislation, controls appropriations (subject

to executive veto), congress may also freeze the implementation of new rules before they take effect.Public accountability

Freedom of information act: agency must disclose certain records to any person on request subject torestrictions as to time and place and electronically within one year.

Sunshine legislation: subject to specified exceptions, agency meetings must be noticed to the public andopen for public observation


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Regulatory flexibility act (RFA): when a new regulation will have a significant impact upon substantialnumber of small business, agency must consider less burdensome alternatives, notify small businessabout forthcoming info, and reduce the record-keeping responsibilities of small businesses.

Small business regulatory enforcement fairness act: must explain regulations in plain English, hiresombudsmen to receive comments and complaints from small businesses to recover expenses and legalfees incurred due to excessive agency demands.

Researching a case on the Internet: West law is $200 a month.

Review Summary Notes:

Chapter 9:

Vocabulary:


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acceptance In contract law, the offeree's notification to the offeror that the offeree agrees to be bound by the terms of theofferor's proposal. Although historically the terms of acceptance had to be the mirror image of the terms of theoffer, the Uniform Commercial Code provides that even modified terms of the offer in a definite expression ofacceptance constitute a contract.

adhesioncontract

A standard-form contract, such as that between a large retailer and a consumer, in which the stronger partydictates the terms.

agreement A meeting of two or more minds in regard to the terms of a contract; usually broken down into two eventsan offerby one party to form a contract, and an acceptance of the offer by the person to whom the offer is made.

assignment The act of transferring to another all or part of one's rights arising under a contract.

consideration Generally, the value given in return for a promise. The consideration, which must be present to make the contractlegally binding, must be something of legally sufficient value and bargained for and must result in a detriment to thepromisee or a benefit to the promisor.

contract An agreement that can be enforced in court; formed by two or more parties, each of whom agrees to perform or torefrain from performing some act now or in the future.

counteroffer An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a newoffer.

covenant not tocompete

A contractual promise to refrain from competing with another party for a certain period of time (not excessive induration) and within a reasonable geographic area. Although covenants not to compete restrain trade, they arecommonly found in partnership agreements, business sale agreements, and employment contracts. If they areancillary to such agreements, covenants not to compete will normally be enforced by the courts unless the time

period or geographic area is deemed unreasonable.

delegation The transfer of a contractual duty to a third party. The party delegating the duty (the delegator) to the third party(the delegatee) is still obliged to perform on the contract should the delegatee fail to perform.

estop To bar, impede, or preclude.

exculpatoryclause

A clause that releases a contractual party from liability in the event of monetary or physical injury, no matter who isat fault.

express contract A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.

implied-in-factcontract

A contract formed in whole or in part from the conduct of the parties (as opposed to an express contract).

incidentalbeneficiary

A third party who incidentally benefits from a contract but whose benefit was not the reason the contract wasformed; an incidental beneficiary has no rights in a contract and cannot sue to have the contract enforced.

intendedbeneficiary

A third party for whose benefit a contract is formed; an intended beneficiary can sue the promisor if such a contractis breached.

mailbox rule A rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in a mailbox), ifmail is, expressly or impliedly, an authorized means of communication of acceptance to the offeror.

mirror image rule A common law rule that requires, for a valid contractual agreement, that the terms of the offeree's acceptanceadhere exactly to the terms of the offeror's offer.

mutual assent The element of agreement in the formation of a contract. The manifestation of contract parties' mutual assent tothe same bargain is required to establish a contract.

offer A promise or commitment to perform or refrain from performing some specified act in the future.

pastconsideration

An act done before the contract is made, which ordinarily, by itself, cannot be consideration for a later promise topay for the act.

promise A declaration that something either will or will not happen in the future.

promissoryestoppel

A doctrine that applies when a promissory makes a clear and definite promise on which the promisee justifiablyrelies; such a promise is binding if justice will be better served by the enforcement of the promise.

revocation In contract law, the withdrawal of an offer by an offeror. Unless an offer is irrevocable, it can be revoked at any timeprior to acceptance without liability.

Statute of Frauds A state statute under which certain types of contracts must be in writing to be enforceable.

third partybeneficiary

One for whose benefit a promise is made in a contract but who is not a party to the contract.

voluntaryconsent(genuineness of

Knowing and voluntary assent to the terms of a contract. If a contract is formed as a result of a mistake,misrepresentation, undue influence, or duress, genuineness of assent is lacking, and the contract will be voidable.


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assent)

Class notes 2/2/2010:

Contract formation essentials

Agreement: must have an offer and an agreemento Offeror: proposing agreement

o Offeree: person who was proposed to

Consideration: something of value exchanged in the contract

Contractual capacity: 18 (or legal contract age), not mentally incompetent or impaired

Legality: legal purpose, not against public policy

Exceptions to enforceability:o Genuineness of assent, or voluntary consent: not fraud, under duress, mistake, drunk, etc

o Form: some have to be written to be enforceable

Contract vs. promise

Do Promisor

o Promiseo D

Bilateral vs. unilateral

Bilateral contract: promise for a promise

Unilateral contract: promise for an acto Once act has begun, it can no longer be canceled

Formal and informal contracts

Formal: must have a special form (written)o Contract under seal: formalized writing with a special wax seal attached

Informal (simple) contract: verbal not required to have a specified form

Express and implied contracts

Express contract: terms are fully and explicitly expressed with words in writing or verbally

Implied-in-fact contract: implied by the conduct of the parties. A service person expects to be paid andpurchaser has the opportunity to refuse.

o Plaintiff must have furnished service or property

o Plaintiff expected to be paid, and defendant could reasonably assume payment was expected

o Defendant must have chance to reject, but did not.

Performance (Execution) and Validity (Enforceability) Executed contract: finished on both sides

Executory contract: not finished on one or both sides

Valid contract: satisfies pg 198o Voidable contract: contract entered into under duress, by a minor, or by someone being

defraudedo Unenforceable contract: valid contract, but law or statue renders it unenforceable like it must be

in writingo Void contract: one or more of the requirements of a valid contract were not me. Void and

contract are mutually exclusive terms


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Agreement: impose legally enforceable obligations on the parties

Offero Serious intention to become bound by the offer: Intend to perform

Offer itself can be definite enough that the acceptance can be binding

Intent to offer: not actually an offer

Some statements that are excludedo Frustration

o Joking

o Opinion

o Intention (probably, planning or considering future actions)

o Preliminary Negotiations

o Agreements to agree

o Auctions or other invitations to bid, negotiate a contract, and

advertisements (most types)

o Reasonably definite terms

Identification of the parties

Identification of object or subject matter, goods, services, land Consideration to be paid

Time of delivery, performance, paymento Communicate offer to offeree resulting in their knowledge

If someone does not know of a reward for an act, they cannot collect

Acceptance -o Unequivocal accept and communicated

o 3rd party cant substitute themselves and accept

??? what was thisRevocation or Termination

Unless irrevocable, offeror may revoke anything not yet accepted at any time without liability even ifthey promised to keep it open as long as revocation is communicated to offeree before their acceptance.Exceptions to this are:

o Merchants Firm offer in writing that the offer is available for a certain time and signed, then

offer must stay open for that timeo Option contract cannot be revoked for a certain definite time

Must give valuable considerationo Offeree has justifiably relied to their detriment a.k.a. promissory estoppel

Rejection and counter offer

Rejection: once rejected offer is terminated. Only effective when actually received by offeroro Any other acceptance will be a new offer even if the same exact terms: inquiring about the offer

does not constitute acceptance or rejectiono Rejections by words, conduct, intent not to accept, must be known to offeror

o Rejection must be received by offeror prior to any contrary writing or conduct of acceptance, or

contract is then considered accepted

Counter offer reject and make anew offero Mirror image rule terms in the acceptance must match exactly the original offer. Any change

constitutes a rejection of old offer and substitution of the new offer.Termination by law

Lapse of timeo If no time period specified, what is reasonable?


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Destruction of subject matter

Death or incompetence of offeror or offeree

Illegality of proposed contractAcceptance is voluntary:

Unequivocal acceptance (mirror image rule):o If acceptance is not qualified by a condition of acceptance such as (if you do this I will accept),

then it is unequivocal even if they complain about the terms.

Contract cannot be accepted by silence except for:o Acts consistent with acceptance.

o Implied in fact by not refusing a service (assuming offeree knew about the service)

o Prior dealings that established business practices

o Unilateral contract: accepted by action, or rejection by inaction

Communicating acceptance

Use of authorized method in the contract makes acceptance effective when mailed (mailbox rule)

Impliedly auth methodo Faster than stated method in the contract

o US mail

If it does not indicate the approved method of acceptance, then whichever method has been used in the

past or faster.Effective time of acceptance

Mailbox rule: If properly dispatched, then it is effective upon dispatch by offereeo Non-properly dispatched is effective when received

o Revocation effective upon receipt, acceptance is effective upon dispatch (using authorized

method) unless both are sent then whichever is received by offeree first is the winnero A method is authorized if there is a precedent in the business dealing and that method or faster is

used.o Exceptions to this are:

Not properly dispatched: slower method used, wrong fax number, email address, etc.

unless still timely received despite the errors. If they conditioned the offer on receipt of acceptance, will be when received

Rejection sent before counteroffer or acceptance, then whatever offer receives first iseffective.

Effect of unauthorized method offeree fails to communicate, will be effective when the offerorreceives it

Consideration legally sufficient, bargained by the party receiving ito Legally sufficient

Promising to do something with no prior legal duty to do it

Performing action promisor is not obligated to do

Refraining from exercising a legal right that the promisor is otherwise entitled to exercise

(forbearance)o Consideration is bargained for if it is sought by the promisor in exchange for the promisors

promise and given by the promisee in exchange for the promisors promise

Courts will not inquire into the adequacy of consideration as long promisor and bargainedfor it. In extreme cases, inadequate consideration may represent duress, undue influence,fraud, etc.

Something must be exchanged, promising to do something without anything in return orbecause of a fact that already exists is not a contract

Insufficient consideration

Preexisting legal duty to something


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o Unforeseen difficulties may require new contract or additional consideration, but must be

extraordinary and outside of normal business difficultieso New, superseding contract both parties can rescind their contract and put themselves to the

place they were before the contract was signed. Then they form a new contract.

Past consideration promises made for actions or payments that have already taken place areunenforceable.

Promissory estoppels (aka detrimental reliance):

When someone has substantially relied on the promise of another, they can claim there was a contract.This applies even in the absence of consideration.

o Must be a clear and definite promise

o The promisee must have justifiably relied on the promise

o The reliance normally must be of a substantial and definite character

o Justice will be better served by enforcement of the promise

Contractual capacity

Instances where one is not bound by contractso Minors can disaffirm contract even after 18, but must cancel entire contract and not just part of

it.

Status ends at 18 in most states

Status ends at marriage

Status ends at emancipationo Intoxicated person must prove that they couldnt comprehend legal consequences

o Mentally impaired or incompetent persons cant act reasonably

Adjudicated incompetent, contract is void

Only contracts entered into by guardian are validIllegality

Illegal contract void clause or contract may be illegal even in the absence of a specific statueprohibiting the action promised in the contract

Some provisions in a contract are contrary to statues and therefore are illegalo Contracts to commit crime even if the act became illegal AFTER the contract is made, it is still

unenforceableo Usury maximum rate of interest that can be charged. Contracts that exceed this have different

rules per state of what the loan company can recover.o Gambling distribution of property by chance among persons paying consideration for that

chanceo Licensing statues unlicensed professional workers may be agreeing to unenforceable contracts

because the work they perform requires a license.

Contracts in restraint of trade

Reduce competition must be reasonable in scope (area), duration, and secondary to the contracto Restrictive covenants in the sale of business

o Restrictive covenants in employment contracts

o Restrictive is ok, but only if ancillary

Other contract contrary to public polity

Unconscionable contracts overly oppressive agreements are discardedo Procedural unconscionability inconspicuous print, unintelligible language, no

opportunity to read or ask questions about the contract, massive disparity in bargainingpower, adhesion contract take it or leave it contract: most standard form contracts arelike this.


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o Substantive unconscionability over harsh, one sided, or restricting one party while

allowing free reign for the other party can be struck down

Exculpatory clauses used to exclude the business from any liability for injury or monetarydamages no matter who is at fault. Sometimes the courts refuse to enforce such clauses, but othertimes they do.

Statue of Frauds denies enforceability to certain contracts that dont meet its requirements. These contractsfall under this statue and require it be in writing

Contracts that must be in writingo Interests in land

o Cannot be performed within one year from the date of formation

o Promises made in consideration of marriage

o Under the UCC, contracts for the sale of goods priced in excess of $500

Promissory estoppel exceptions:o If the promisor could foresee that the promisee was going to detrimentally rely on the

promise, and if injustice could be avoided only by enforcing the promise then it will beenforced

3rd party rights one party has a right require another party to perform, and the other party has a duty to

Rights can be assigned from the original assignor to an assignee and this will terminate all rightsthe assignor had. Some statues prohibit certain rights from being assignable and contracts thatare personal in nature cannot be assigned unless the only thing left is $.

Some contracts can prohibit the assignment of rights, the following cannot be prohibitedo The right to receive payment

o Ownership rights in Real Estate

o Assignment of Negotiable Instruments

o In the sale of goods: the right to receive damages for breach or payment of owed money

Transferring duties is called delegation. The original party (delegator) is still on the hook thoughif the new people (delegatee) dont perform.

Delegation is prohibited in the following circumstances:o When special trust has been placed in the obligoro Performance depends on the special skills or talents of the obligor

o When performance by a 3rd party will vary materially from that expected by the oblige

o When contract expressly prohibits delegation

Third parties can be involved in a contract without signing

If a 3rd party is designated and the beneficiary of a contract they are called the 3rd partybeneficiary

They can then sue the promisor directly for breach of contract if need beo An incidental beneficiary is not important to the contract, so has no rights to sue.

Review Summary Notes:


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Bus Law Class Notes to Ch 9

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