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Law: writing, torts, property, contracts

be alert, experiment, be patient, general principles first

hints for using the writing process well

letter for your boss/client

office memo

what you might submit to a court


rule-based reasoning

past case implemented this rule.

Analogical reasoning

the person in the past case was in a similar situation

counter-analogical reasoning

this is different from the past case because

policy-based reasoning

we want to achieve this policy, so the ruling should be


reaching ruling by story

preponderance of the evidence

the standard of proof that must be established to win a civil case. The standard is met when a party's evidence indicates that it's more likely than not that the fact is as the party alleges it to be.

purpose of Uniform Commercial Code

standardize transaction of goods across state lines

definition of Goods in Uniform Commercial Code

all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action.

example of formal requirements in Uniform Commercial Code

A contract for the sale of goods for the price of $5,000 or more is not enforceable by way of action or defense unless there is some record sufficient to indicate that a contract for sale has been made between the parties and signed by the party against which enforcement is sought or by the party's authorized agent or broker. A record is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this subsection beyond the quantity of goods shown in the record.

purposes of tort law

1. peaceful means for adjusting rights, prevent "taking the law into their own hands"
2. deter wrongful conduct
3. encourage socially responsible behavior
4. restore injured parties to their original condition
5. vindicate individual rights of redress
6. Allocating burdens

insurance system

in the back of the tort system is an...

US court system

Federal State (varies by state)
Supreme court State Supreme
Appellate Courts of Appeal/ Superior
District courts District court





discussion of Toker v. Westerman

Welfare, contracts enforced? Milk today, extra price, discourage bad acts, societal good? unconscionable. injury to the public

instant the contract is made

when we judge the validity of a contract

don't always look for hard and fast rules.

key to torts, contracts and property

actual damages

needs to be shown in a negligence case

Brown v. Kendall

dogs, hits owner (name of case), Dog fight. If the injury was unavoidable, and the conduct of the ∆ was free from blame, he will not be liable. Burden of proof on π to show ∆ acted without due care.

civil remedy

torts are not given a criminal remedy, but a...

Expectation interest

restore buyers to how they expected they would be

fault-based liability

both Intentional torts & Negligence have _____-_____ _________, but strict liability dies not

rule in Brown v. Kendall

"If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it. . . ."

Individual's right to own land to the exclusion of everyone else

Classical definition of property:

Johnson v. M'intosh

case involving native American property rights, ruled for US rights. Reasoning: European law and lack of civilization among slaves

if someone improves land, they get the right to own it.

labor theory of property

without hurting someone else

Some claim that property rights can't help someone


Hagel argued that property rights are essential to

Sales or transactions in goods

Article 2 of the Uniform Commercial Code


the original Article 2 of the UCC is __________ on whether some things are goods

lawyer's reasoning

If I was in Cincinnati...

hard edged rules of entitlement

whoever kills the fox, gets it

ambiguous standards

whatever feels right

Ghen v. Rich

RULE: When someone does all that is possible to secure control over a wild animal, within the recognized custom it becomes property of the securer.

no fault

strict liability


_______ defines property rights

strict liability

holding a defendant liable without a showing of negligence


failure to act with the prudence that a reasonable person would exercise under the same circumstances

Garratt v. Dailey

Boy moves chair from underneath an old lady. If the defendant "knew with substantial certainty" that his actions would cause harmful contact, then the defendant is liable for battery.

rules and ambiguities

main things to put in outlines.


difference between negligence and assault and battery

inherited rule

rule from prior authorities


in court commentary

processed rule

rule that meets the facts of the case

balancing test

example of common rule structure

section 2 revision

part of UCC that wasn't adopted


Does the UCC cover sale of land?

pros of bright line rules

reduces cost, more certainty (expectations), less subjective, easier to resolve/less litigation

future goods

Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are ___________. A purported present sale of future goods or of any interest therein operates as a contract to sell.


If you don't understand the __________, you don't understand the law.

riparian doctrine

1. Water belongs to those who own the land bordering the watercourse
2. Share right of reasonable use of water
3. Liable if use unreasonably interferes with others'

prior appropriation system

1. anyone is entitled to divert water.
a. Provided the water is not being used by someone else
b. provided you're first
c. provided you put it to good use (erickson)

muddy rule

love thy neighbor is an example of a


Fault does not depend on the

Spano v. Perini Corp.

• Strict liability was originally based in trespass.
• Defendant blasting and there was a garage across the street that was damaged by the blasting.
• Explosion is the movement of particles (movement from literal trespass to something more figurative.
• Strict liability: one who engages in abnormally dangerous activities must assume the responsibility for the consequences regardless of the trespass.


most of the world is not on the


most of law school is on the

principled consistency

Understanding similarities and differences leads to


Contract law is about compensation, not

Pierson v. Post

RULE: A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership.

Dissent of Pierson v. Post

muddy test-- first pursuer

Affirmative duty

(Specific Performance Duty) is a duty to do something for someone. rarely enforced under common law, but more recently.

Summary judgement

facts not in dispute, skips trial to production based on the law

pocket parts

softcover addendums


are "future goods" goods?


replacement for direct force

intentional torts

Writ of trespass became


action on the case became


Can we detf the harm involved;
(c) the social value that the law attaches to the type of use or enjoyment invaded;
(d) the suitability of the particulalized case: if restitution is too*tion, cooperation, and safe worker use


whether or not somaone took care. used in negligence, but no20harmful/offensive contact, and such contact has to occur.

eminent domain

1. taking
2. For public use
3. Just compensation

boyce v. Brown

fractured ankle had screw put it no problems for 7 years, another doctor took out the screw and ankle healed. Not all cases require an xray, must depend on expert testimony to say if an ordinary professional would have taken an xray

penn central v. new york city

1978 - Takings - Restriction on Use - Upheld that the restrictions imposed (by the Landmarks Law) are substantially related to the general welfare and not only permit reasonable use but also afford appellants opportunities to further enhance the property. 3-factor regulatory takings test. Court must evaluate a regulatory takings claim based on (1) the economic impact of the regulation, (2) the owner's reasonable investment-backed expectations, and (3) the character of the regulatory action.


typically, is stupidity or insanity a defense against the reasonable prudent person standard?


we do not look at average! we look at what is ___________ for the profession.


you move your due care standard if you hold yourself as a __________ professional

statute of limitations

That period of time established by state law during which a lawsuit may be filed

malpractice (negligence)

1. learning, skill, abiity
2. judgement
3. diligent care

locality rule

A mesure of the standard of care, by which a Professional is held to the standard of care of the community in which they practice.

similar locality rule

A mesure of the standard of care, by which a Professional is held to the standard of care of the communities similar to the one in which they practice.

national rule

A mesure of the standard of care, by which a Professional is held to the standard of care of the nation as a whole. this is the typical standard


case names (bluebook)


Reporters and other sources (bluebook)


court and jurisdiction (bluebook)


date or year (bluebook)


how to type §


weight of authority (bluebook)


prior and subsequent history (bluebook)


basic citation forms--statutes (bluebook)


choosing the proper citation forms-- statutes (bluebook)


periodicals (bluebook)


administrative and executive materials (bluebook)


abbreviations (bluebook)


periodicals (bluebook)


A person is entitled to use reasonable force to prevent any harmful or offensive bodily contact and confinement/imprisonment


Introductory signals (Bluebook)


an abbreviation meaning "compare"


buyer's damages for non-delivery or repudiation.

Lucas v. South Carolina Coastal Council

Lucas buys two properties next to the beach and goes to build two houses, but when he goes to get the permits he finds that the Council had moved the Set Back line past his property to where he can't build his houses.
Court States: Decides in Lucas' favor. The Council owes Lucas one million dollars. When the government deprives the owner of all economically viable use, the government must pay just compensation. This only becomes a taking when the government takes and destroys all of it.


refer to the court as __ in writing

minority requirements

1. public use (highways, railways, etc.) to private
2. public use land being taken (private enity remains accountable to the public)
3. public use, private ownership (Independent publiv purpse--condemnation heps)

United States v. 564.54 acres of land

can you be remedied for more then fair market value? no

eminent domain

just compensation v. fair market value is a debate in _______________ ______________.

penn central test

balancing: is it a taking?
1. Economic impact
-investment-backed expectations
2. nature of the taking
-physical invasion or something else?
3. not expectation, but property. 4. How severe a taking?

Medical malpractice

1. duty to inform & breach
Material risks and alternatives
-- anything that changes mind
what would this plaintiff want to know?
- what would the RPP want to know?
-what a reasonable prudent physician would disclose
2. causation.
--if informed of risks, would not have accepted treatment.
--what would this patient have done/ what would the RPP have done?
--the jury has to decide.
3. injury --risks actually realized.

Contracts practice lessons

1. reference every fact that seems disputable
2. be concise and relevant.
3. write like a memo-- but don't make it pretty.
4. never divorce facts from definitions (IE, restitution mistakes)
5. read carefully and remember-- this is not a math test.

discrete contract

low probability of familiarity with other party, not a repeated game

relational contracts

are contracts whose provisions are dynamic with respect to the environment in which they are executed.


The necessary elements of mutual assent; for example, an agreement of one party to buy and another party to sell; replaced by UCC


an agreement between parties (usually arrived at after discussion) fixing obligations of each


rules for determining moment of formation are not ____________.


Formation of contract under UCC, can be made in any manner sufficient to show agreement.

Standard of interpretation

based on intention, or meeting of the minds.


additional terms in acceptance or confirmation

Morrison v. MacNamara

medical procedure done while standing guy fainted and hit his head. National standard was to do the test sitting down, local standard was to do it standing. Went with the national standard→must exercise the "degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances". Local rule outdated
• Now use similar community in similar circumstances


a man engaged to be married


a woman engaged to be married

Federal Practice digest

digest by West for Federal courts

regional digest

digest by West only for state courts.

state digest

digest by west for state and federal courts in 1 state


one is liable if.... (L. Hand in Carroll)


one is not liable if.... (L. Hand in Carroll)

pokora v. Wabash ry. co.

P carefully approached a train crossing with obstructed view got hit. Complaint dismissed bc his conduct was contributory negligence. P has a duty to stop, look, listen, and get out of his car and look if safe/possible
• Must be able to stop within a range of vision

contributory negligence

behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence

reasonable prudent person

Hand formula meant to approximate, not replace ________ _________ _____________ standard

negligence per se

An act that is considred inherently negligent because of a violation of a law or ordinance is referred to as ___________ ______ _____. There may be an excuse, only if such excuse is enumerated in past case law.

statute, standard of care

the _________ is the ______ __ _______ if:
1. purpose of statute is designed to prevent the arm that occurred
2. statute is designed to protect people like the plaintiff


topic 4 in digest would be referred to by ___.


"Just compensation is rarely __________."-- Prof. Baradaran


takings is in large part about ________________.

Loretto v. Teleprompter

Building owner says government requirement that she tolerate cable box and wire is a taking; Permanent physical occupation is always a taking regardless of degree of public benefit or private burden; strict liability, bright line rule

physical invasion

reasons for bright-line rule re: ______ _______ in takings doctrine

1. limits ability to exclude
2. to use
3. to sell/profit from
4. free from disturbance

per se, takings

____ _____ rules against _________, given for public use
1. physical occupations=takings
2. all economic use deprived=takings


not keeping a statute is ____________, but the full effects of a statute not being followed is not _________.

wallace v. rosen

woman touched other to move during a fire drill. battery is the knowing or intentional touching of a person against his will in a rude, insolent, or angry manner. In a crowded world, a certain amount of personal contact is inevitable and must be accepted. Harmful or offensive must meet reasonable standard


capitalization (bluebook)


letter of acceptance is mailed,
crashes. do most people think the contract was made?


a requirement imposed by a local government that a developer contributes to the community by providing an amenity, paying an impact fee, or making some other monetary contribution as a condition of development


needs some other law (e.g. Nuicance) to prove affirmative duty. Is it a taking w/just compensation?


5th amendment sufficient for ______. public use


Duties between these two parties are to compensation, reiumbursement and indemnifivation

Stanchniewiez v. mar-cam Corp.

statute and regulation: standard of care for serving beer to drunkards.

determining statute relevance in tort law

1. Does the statute apply?
-what harm is the statute designed to prevent?
-What is the text of the surrounding statutes?
-Other context signals.
Who is the stat3A adds to intent to make harmful or offensive contact, inigned to protect?

Statute%2t to cause harm--exception to normal rule of intent, which is only "harmful or offensive"

transfer of intent

If we have intent, we can transfer it to any plaintiff injured or any other intentional tort.


United States Code Annotated. A commercially published edition to the United States Code.


United States Code. A compilation of Congressional statutes and their amendments which is organized into fifty subject titles.

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