403 MT 1

• 1. US Constitution
• 2. Treaties (reqs. Pres + 2/3 senate; bypasses Congress)
• 3. Fed statutes
• 4. State constitutions
• 5. County/city ordinances
• 6. Private laws

• If the law is not just it should not be followed
• You were born with natural rights

Law is an evolutionary process of social customs which appreciates precedent to transmit important values to the next generation

• The law is a tool for social justice
• Use law to change societal norms

• Analytical
• Critical Legal Studies

• 1. standing to sue
• 2. jurisdiction (2 ways)
• 3. venue

Pt has to have suffered some injury or will be immediately injured

• 1. In personam: file suit where the person lives
• 2. In rem: jurisdiction over where the property is

• Cases heard by nearest court to the incident or where the parties reside
• Courts can transfer in interest of justice or convenience
• Forum shopping is bad

• Negotiation
• Mediation
• Arbitration

• Settlement discussions w/neutral 3rd party, usually an expert or specialist
• Enter voluntary settlement agreements

• Neutral 3rd party assists, but usually meets with parties separately
• Cannot make a decision or award; just tells parties what a ruling will be, then parties hopefully resolve

• Binding: arbitrator can state monetary damage and you can take that to court to bind judgment
• Non-binding: you can go to court to get it enforced; parties settle or go to trial/binding arbitration

• Complaint (Pt's action): Pt files a complaint, which initiates a lawsuit. Complaint + summons served to defendants
• Answer or Demurrer (Df's action): must be served upon court and Pt within statutory time. Answer - admit or deny; demurrer - even if facts as alleged by Pt are true, does not sustain cause of action sought
• Cross complaint

Pt can have a default judgment entered; now Pt only has to prove damages

• Pt -> cross-defendant
• Df -> cross-complainant

• Depositions
• Interrogations
• Request for admissions
• Production of documents
• Exams

• Oral testimony before trial
• Preserves testimony (can be used if party is ill or dies before trial)

• Written questions; send and they reply back
• Form interrogatories: checklist of Q's; very vague and generalized
• Special interrogatories: limited to 35 Q's but ask whatever you want

Ask them to admit or deny something

Request the other part to give all relevant documents except any privileged, attorney work product and docs protected by privacy rights

• Make them get physical or mental exams
• Demand for Bill of Particulars: requires itemization of each cause of action and its monetary payment

Greatest good to society

Reason should be used to determine how to behave

• Fed Constitution and fed. laws and treaties made pursuant to it are supreme law of the land
• Where congress has shown legislative intent to exclusively regulate an area/activity, any state law is preempted

• Congress can regulate commerce of Native Americans, Foreign countries, and interstate 
• Prevents states from taxing each other

States cannot deprive citizens of other states of the privileges and immunities it affords its own citizens (except in-state tuitions)

Police: regulate own affairs within borders

Empowers Congress to levy taxes on all states

• Applies to fed., state, local gov't
• Scope: freedom not to speak, to speak anonymously, symbolic speech
• Types of protection vary

• Cannot be regulated or stopped
• = anything not under limited or unprotected

• Gov't can place reasonable content-neutral time, place and manner restrictions on speech
• Offensive speech (F-word on TV at a certain time)
• Commercial speech (where you put the billboard)

• Gov't can absolutely forbid
• Dangerous
• Fighting words
• Incitement of illegal activity
• Defamation
• Child born
• Obscene (case-by-case)

• Private? Do what you want. Public? No.
• Defined loosely as a "sincere belief in a supreme being"
• Establishment Clause
• Free exercise clause

• Gov't must be neutral
• Gov't can't establish a religion
• Gov't can't play favorites

• Gov't can't interfere with the exercise of a religion
• Freedom is not absolute (N. Americans trying to say smoking that drug is "religious")

States must treat similarly situated individuals in a similar manner

• Race, national origin, voting, domestic travel
• Law upheld if necessary to achieve a compelling gov't purpose

• Gender
• Law upheld if substantially related to a gov't purpose

Law upheld if rationally related to a legitimate gov't interest

• Must be provided before a person's life, liberty or property is taken (2 types)
• Substantive: asks if gov't has an adequate reason to take the LLP
• --> fundamental right is limited --> strict scrutiny test (marriage, children, procreation and everything else under strict scrutiny)
• Procedural: gov't must provide notice and hearing reqs before person deprived of LLP

• Substantive: if law denies rights to everyone
• Equal protection: if law denies rights to some while allowing to others

• Wrongful act that injures another's body, property or reputation
• Pt's always seek monetary damages, sometimes punitive

Acts of omissions that are intended or could reasonably be expected to bring about the consequences of the tort

• Tortfeasor intends to commit a tort against a person but either commits a different tort against that person or injures another person
• Tortfeasor held liable for intentional tort caused to victim

• Threat or action of imminent harm or offensive contact causing reasonable apprehension at the imminent harm
• Future harm? No, not an assault
• You have to be aware that it happened

• An intentional harmful or offensive contact to a person
• Direct or indirect contact OK
• You don't have to know it's happened

• Failure to exercise reasonable care under the circumstances to another that causes harm
• Duty of care
• Breach of duty
• Causation
• Harm

• A person must provide an amount of care that a reasonable person would, acting under similar circumstances; intent is irrelevant
• Children under 4 are incapable of negligence
• Statutory duty of care: defined by statute or case law

• When a person fails to act as a reasonable person would under similar circumstances
• No duty to rescue someone in danger unless you caused the harm or there's a preexisting relationship

Where a statute creates a duty of care and the person harmed is a class of person meant to be protected

• The thing speaks for itself --> you don't know who caused the harm
• When parties unable to determine what Df did wrong then switches the burden of proof from Pt to Df to prove they were not negligent
• Requires that Df had exclusive control of instrumentality of situation that caused Pt's injury, and injury does not normally occur w/o negligence (think gauze left in someone during surgery)

• Actual cause: "but for" the Df's conduct would the accident have occurred?
• Proximate cause: is it "fair" for there to be liability under the circumstances

• Negligence reqs Pt to have suffered injury or damage to property
• Pure comparative negligence: Pt will recover even if at 99% fault
• Partial comparative negligence: Pt will only recover if 49% or less at fault; reduce this amount from Pt's recovery of damages

• Liability without fault
• A party will be liable regardless of intentions or exercise of reasonable care
• Cannot waive or disclaim

• Domesticated: no strict liability unless there is knowledge of a domesticated animal's dangerous propensity
• Wild: keepers strictly liable for any injury

• Product must be somehow defective
• Not services; products only
• Applies to merchants only

• If product is different and more dangerous than a properly made product
• Occurs when a manufacturer fails to properly assemble, test OR adequately maintain quality controls

• When a Pt can prove there is an alternative design that is safer and is economically feasible
• Likelihood of harm > burden to manufacture and design safer products

A product is inherently dangerous and cannot be made safer AND the product lacks an adequate and conspicuous warning label

Certain manufacturers owe a duty to childproof or tamperproof certain products

If you fail at this, manufacturers and supply chain are liable

• Proprietary, confidential business secret that sets it apart from competitors
• Last indefinitely but owner must take ALL reasonable precautions to prevent it from getting out
• Lawful to reverse engineer

• Grants a property right to inventor with exclusive rights
• Designs, plants, or utilities
• 20 years (design for 14); begins from date application is filed
• If something was being used by the public for over a year, can't get a patent
• First-to-file rule

• Novel - has not been invented or used in the past
• Useful
• Non-obvious or apparent to a reasonable person

• Author's life + 70 years
• 95 years after publication or 120 years from creation

• Distinctive, OR
• have acquired a secondary meaning (brand name that has evolved from an ordinary term)
• Must be used in commerce
• Duration: 10 years (can be renewed indefinitely)

When most of them agree on the outcome and reasoning

When they agree on the outcome but don't agree about the reasoning

• Federalism: where fed and state gov'ts share powers
• Enumerated: powers delegated to fed gov't from state
• Reserved: powers not specifically delegated to fed gov't are reserved to state gov'ts

The theory of business social responsibility that holds that a business owes duties solely to produce the highest return for its shareholders

A pre-trial order when a court allows a third party to join a lawsuit in order to protect their interests

State and fed gov'ts share powers