Legal History Midterm

Law

• That which is laid down, ordained, or established

  • is a body of rules of action or conduct prescribed by a controlling authority, or having binding legal force

  • Solemn expression of the will of the supreme power of the state

  • Body of principles, standards, and rules promulgated by government

Appellate Court

• Function is to determine whether the trial court applied the correct law

• ex. supreme court is highest appellate court in US

Certiorari

• To be informed of

  • a writ of common law origin issued by a superior court to an inferior court requiring the latter to produce a certified record of particular case tried therein

  • used to check for irregularities

  • used by SC as a discretionary device to choose the cases that it wants to hear

    • SC gets several thousand requests a year, only hear less than 100

    • need 4 judges to grant this

Civil Law

• The body of law which every particular nation, commonwealth, city has established particularly for itself

• laws concerned with civil or private rights and remedies, as contrasted with criminal law

• Private (individual) wrongs

  • remedy is monetary payment

Common Law

• compromises the body of those principles and rules od action relating to the government and security of persons and property, which derive their authority solely from evolving traditions'

  • from judgements and decrees of the courts recognizing, affirming, and enforcing such usages and customs

• British common law: precedent, role of judges

• AMerican law follows this, except for Louisiana

• Importance of precedents:

  • law to be fair is to be consistent

  • cons: standards and moral change overtime, maybe they were wrong

Consideration

• the inducement to a contract

  • the cause, motive, price, or impelling influence which induces a contracting party to enter into a contract

  • the reason or material cause of a contract

  • 2+ parties agree

Equitable vs Moral Consideration

• devoid of efficacy in point of strict law, but are founded on moral duty and may be made the basis of an expressed promise'

• Law/equity: legal situation may have harsh consequences

• Equitable: fairness and justice

• Moral: evaluation of conduct and establishment of rules

Contract (K)

• enforceability of a promise or of mutual promises executory in nature, that is to be carried out in the future

  • An enforceable promise in law

• Require elements: Offer, acceptance, and consideration (exchange of value)

• Formal: may be a written document, classically under seal

• Informal: may be implied from facts of situation, or expressed in speech or writing

Fee

• is an external interest in property; right to inherit and sell'

  • property rights and law

• Fee simple: one person vs joint tenancy or tenancy in common

Jurisprudence

• legal philosophy

  • it is not law but the theories about law, what it should be, and how it (constitution) should be interpreted

  • ex. textualism vs originalism

Originalism

• legal philosophy

• dead constitution

• original intent of the text and the framers

• objective way of interpretation

• Cons: adjustments of social norms, ideas change, seen as too simplistic

  • do we know original intent?

Textualism

• Legal philosophy

• living constitution

• what does the text actually say?

• denotation vs connotation

• cons: words have different meanings, too broad or vague

Natural Law

• System of rules and principles for the guidance of human conduct which might be discovered by rational intelligence alone

• Said to express necessary and obligatory rules of human conduct that have been created through human reason

  • inscest

• law which is so fundamental, seems to be a part of human nature

• can vary culture to culture and fall to bias

• things can change (gay marriage 100 yrs ago vs now)

Privity of contract

• connection or relationship that exists between two or more contracting parties

  • traditionally: regarding a contract, such privity should subsist bw plaintiff and defendant in respect to matter sued upon

  • Currently: the absence of privity as a defense in actions for damages in contract and tort is not admissible bc of states doctrine of strict liability and court decisions

Police powers

• powers derived from the perceived duty of the states to protect the health, safety, welfare, and morals od their citizens

standing

• means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of the issue

  • only those affected may plead a case in court

Ripeness

• Is a case ripe/developed enough

• trial/appellate court or still in early stages

Mootness

• it is no longer relevant

  • ex. abortion case where term is over

Stare Decisis

• “let the decision stand”

• the idea of precedent, adhering to decided cases

• not to disturb settled points of the law (usually conservative ideal)

• adhere to the law as set forth in prior cases decided by the highest court of a given jurisdiction as long as the principle derived from those cases is logically essential to their decisions , is reasonable, and is appropriate to contemporary circumstances

• precedent is important, must sometimes has to change

  • evolving standards of justice (ie plessy v ferguson)

Tort

• “wrong”

• some invasion of, or interference with, the rights of:

  • persons

  • property

  • reputation

• Civil/private wrong, but can interfere with criminal law

Intentional tort

• conscience choice

  • assault or robbery

Negligence tort

• a breach of a standard of care that causes injury

• To have negligence you must have:

  • standard of care-to you (lifeguard @ beach supposed to save someone drowning)

  • Did they breach that care (lifeguard goes back to shore when someone is drowning)

    • Reasonable person: if lifeguard went back to shore once they realized they’d drown too

  • Was it the legal cause of…

  • Injury (specific injury-physical, reputational, etc)

• MUST PROVE ALL FOUR FOR NEGLIGENCE

Absolute or strict liability Tort

• Liability is imposed regardless of the absence of an intent to harm another or absent negligence

• ex. extremely dangerous activities, coincidence ending in damages, they know the risk

Tort Damages

• nominal: in name only, insignificant

• compensatory: compensation for the injury-put back in the place they were before the negligence

• punitive: punishment

Trial Court

• a court of first instance, which has two functions:

  • to determine the facts of the case (jury determines)

  • To apply the applicable law to those facts (judge determines)

• Ex. district court

• appeal to appellate court

Divine law

from God ie 10 commandments

positive law

• law that society puts forth

• ex speed limit

Criminal law

• public law

• remedy is imprisonment

• beyond reasonable doubt

Canon Law

Law of the church, such as marriage issues

Articles of confederation

• 1781/3-1789

• confederacy among the 13 states -loose bond, weak national authority

• issues: size of states, slavery, central vs decentral power

• States retained soveirgnty

• if federal government was not expressly given a power, it is not implied and does not happen

• each state: 1 vote (unicameral) had to be unanimous which was nearly impossible

• money is given to treasury in proportion to state size

• “League of friendship”

Gibbons vs Ogden (1824)

• Chief Justice Marshall

• Ogden was governor of NJ

  • conflict between NYS monopoly on steamboat navigation

  • Ogden has exclusive license to operate steamboats in NY water under NYS license

• Gibbons: operated steamboats bw NY and NY under federal license

• Ogden sued Gibbons

  • Gibbons argued that congress gas power to regulate interstate commerce

• Issue: does congress have the exclusive power to regulate interstate commerce

• Ruling:

  • Yes they do

• Decision:

  • cites commerce clause (commerce AMONG the states)

  • commerce covers traffic, intercourse between nations, includes navigation

  • congress has supreme power to regulate commerce btw and within states

    • supremacy over state laws

McCulloch v Maryland

Context: Maryland imposed tax of 50,000 on non-state banks (included Bank if US)

• McCulloch, a bank cashier, refused to pay the tax

• Maryland SC help up the tax, McColloch appealed to SC

Question: has congress the power to make a bank? YES and can a state tax a federal institution? NO
Ruling: John Marshall- based on the necessary and proper clause, along with supremacy clause