Professional Documents
Culture Documents
Outlines
http://lawschool.westlaw.com/shared/marketinfodisplay.asp?code=MI&id=352
outlinedepot.com
Restatements
http://www.law.cornell.edu/wex/contract
http://www.lexinter.net/LOTWVers4/restatement_(second)_of_contracts.htm
Resources
West
Lexis-nexis
Material
Q&A series
Examples & Explanations
Introduction
1. Grades
a. Law review dean list; organization top 10%. Publish a magazine
1. 3 ways to get in
i. 1
st
semester Grades
ii. Writing tryout
iii. Combination of both
b. Applying for summer positions
2. Academics
a. Workload
b. hiding ball mislead Socratic method
c. Look at what kind of exam and the professor type (what to look for)
1. Go office hours
3. Organization
a. Law journal
b. Moot court
4. Contracts
a. Past consideration (after the fact) - unenforceable
b. Before the fact enforceable
5. Reasonableness and the reasonable person standard
a. Objective standard we are not going to adjust reasonableness from person to person. It is a
standard
b. Fictional
c. Adequate standard
d. Assumes certain basic intellectual ability and attention to what's going on
6. *Framework categories. Thought process
a. State vs federal
1. Originates from constitution (1789). Starting point how we organize our culture. It sets
forth how we frame law. Division between fed and state. Articles of confederation
help us understand constitution (1781-1789). Problem the colonist afraid of
centralized power, so 13 had its own country. Two parallel situations fed and state.
b. 3 branches of government. Separation of powers.
1. Executive president
i. today-focused
2. Judicial supreme court
i. yesterday-focused = retrospective
ii. most of what I will be studying
3. Legislative congress
i. tomorrow-focused = prospective
c. Statutory vs. Common Law
1. Statutory laws --> passed by a legislature and are typically found in a code (such as
the California criminal code). Codified, neat and orderly.
2. Common law is made up by judges ('judge-made law"). Works on the precedent based
law. Continue to refine. Common law --> unlike statutory, it is very disorganized and
oftentimes close to contradictory; it's a big mess
Judicial Branch
d. Common Law judicial system
1. Holding vs. dicta part of a judicial opinion, but not labeled as such
i. Holding something we put weight on as precedent value. It explains why
this verdict or decision came out this way. Important part. Holding --> the
decision and the actual reasons for it
ii. Dicta frowned upon. Is other items that are discussed but not part of the
way get in the actual decision. Dicta --> a judge rambling about other stuff
(which they shouldn't do but they do)
e. Law vs. Equity two parallel court systems
1. Equitable remedy - special kind of remedy. Fairness between the parties. Remedy at
law was not achieved, then go to equity court. Something you cant get through law
court.
i. Injunction derives from equity.
2. Legal remedy
f. Civil vs. criminal proceedings
1. Civil had a contract and doesnt go through. Brought by private individual plaintiffs
2. Criminal public law. Something illegal for everyone. Handled by state prosecutor.
g. Trial vs. appeal
1. Trial is where all the evidence is presented
i. Civil trial: plaintiff (the injured party) vs. defendant
ii. Criminal trial: prosecutor (a lawyer paid by the state to represent the public)
vs. defendant (who is the person charged with a crime)
2. Appeal is after trial has already occurred and the losing party is asking for review by a
higher court. (But usually that review is only about the law involved not the evidence
itself)
h. Law/legal issues vs. facts/factual issues (factual inferences vs. legal inferences)
1. Law characterizes facts
2. Cant automatically make a legal inference just based of off facts
3. Evidence vs. what that evidence can show
i. Binding vs. persuasive authority
1. Binding: actual law that a given court has to follow. Binding authority is IN the relevant
jurisdiction and (usually) comes from the same level or a higher level of authority
i. Judge is bound by supreme court
ii. Not binding supreme to trial judge
2. Persuasive: is useful analysis but the given court can accept or reject that analysis
i. "Case of first impression": never ruled in that situation. So can refer to another
jurisdiction that has handled this case before.
ii. Nevada supreme court is persuasive with California trial court
iii. Persuasive: courts decisions from other jurisdictions; can also be influential
books by lawyers or judges, law review articles, dictionaries, encyclopedias,etc
j. Objective vs. subjective standards
1. Objective: doesn't take into account individual perspective. (one-size-fits-all rule)
i. Speed limit 55 and youre going 57 you are breaking it.
2. Subjective: it digs into the brain and how someone was thinking. Usually kids and
adults are usually objective standards
*What is a restatement?* - outline definition
CONTRACT LAW
Intro
contract is an agreement for the breach of which the law provides a remedy
Some way to make a promise enforceable
A promise is a commitment to do something at a later time
How do you make a promise stick?
By providing an incentive to the other side for them to behave well, i.e., keep their promise
reputational benefits
Once we make promises stick , we can do non-simultaneous transactions which opens up a huge
number of new deal possibilities
If you dont have a way to trust another the only way would be force
If there's a third party with even more power and leverage than either of the contracting parties,
then that third party becomes a new way to provide force.
Contract is typically an exchange of: (i) something now for a promise (ii) a promise for a promise
Ways to form a contract
Express contract using words
Implied contract behavior implied an agreement
Elements of a contract
Offer communication of willingness to enter into an agreement and that the other side
acceptance will conclude the bargain
o 24. OFFER DEFINED
An offer is the manifestation of willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that bargain is invited and will
conclude it. (the other person is called the "offeree")
o Advertising --> not an offer, but simply "an invitation to deal"
Acceptance
o Counter-offer acts a rejection and a new offer
"mirror image rule" - the terms of the acceptance have to be identical to the terms
of the offer; otherwise, it's a counter-offer (rejection and new offer)
There has to be a live offer if it was rejected be aware when its live and killed
Two killed then no offer and one person has to open up a new offer
o reasonable period of time an offer can expire
o Revocation of an offer - kills the offer by offerror
If it was a offeree then its a rejection
option contract keeps an offer open for a specified period of time
Irrevocability of an offer through:
Putting a deposit to hold it open
Foreseeable reliance make an offer and then the other says they will
get back to see if they can get a ride and they pay $50 for the ride. Now
the offeror is in a place of liability and now cannot revoke the offer.
o
Foresee - predict at the time that something may happen later (it
doesn't have to be PROBABLE, it just has to be something that
may happen and that people would perceive in advance that this
thing could happen)
o Reliance someone relied on an offer being there or following
through on their promise. counting on someone to follow
through on their promises or statements
relying to one's detriment ("detrimental reliance")
"Mutual agreement" or "meeting of the minds"
o the classic agreement that is not enforceable would be one for an illegal act
Consideration quid pro quo - the thing that the parties are bargaining for; its the stuff that they
want to exchange,' it is what they get out of the deal
o "Whats in it for me?" from each side prospective. This is the consideration
o "Past consideration" = that one party has already done something and then the other
party is trying to compensate them for that past deed. It does NOT work
o Promissory estoppel (we are stopping you from taking back your promise because
someone else relied upon your word. Has to be foreseeable. Standing behind your
promise and will only go so far. It is a backup theory to recover the small amount). The
express promise is not enforceable on standard offer/acceptance/consideration grounds,
but it BECOMES enforceable because someone foreseeably relied on the promise to
their detriment. Back up theory. No contract formed
estoppel - if your behavior or statement causes someone else to change their
behavior and thereby make themselves vulnerable in some way, the law is not
going to allow to "take it back"
Making promises enforceable
o CONTRACT FORMATION:
Express
Offer
Acceptance
Consideration
o if yes, then express contract formed
o if no, then we might use a back-up theory, namely, promissory
estoppel
Which requires: the promise is not enforceable under
contract theory, but there has been foreseeable,
detrimental reliance on the promise. Detrimental reliance
Remedy: generally speaking, an aggrieved party
cannot recover more than the full benefit of the
intended bargain
o CONTRACT INTERPRETATION
Once you've got a contract formed, what are the terms of the contract?
Parole evidence rule - says that discussions before or during the
contract formation that include terms that don't get into the final writing of
the agreement are not part of the agreement. Before and during contract
formation
Pre-existing duty rule - says that a modification, in order to be valid
(enforceable), must be supported by additional consideration. After
contract signed. Unless supported by additional consideration.
Terms part of the deal or not
Usage of trade or trade usage or industry custom meaning of the actual item is ruled by
how it is defined within the industry
o No meeting of the minds if the meaning of the item is not the same, but they think it is the
same. Example: sound system, music stereo.
Course of dealing - a previous deal shows what the parties actually meant by the ambiguous
term. Usage of trade pertains to the whole industry but course of dealing pertains to these
particular parties and is therefore even more helpful.
Course of performing 52 weeks of same item and then on the 9
th
week bring something
different. Course of dealing pertains to PREVIOUS deals but course of performance pertains to
THIS deal and is therefore even more helpful.
LEGAL WRITING
IRAC Issue, Rule, Application/Analysis, Conclusion
ILFAC
o Issue (1-3 words identify) - the legal determination that you are going address. It's the
problem you're going to solve (but don't solve in the issue statement).
Good issue statement for tonight's work: Offer, Acceptance, Consideration,
Rejection, Counter-offer, Revocation, Parole Evidence, Modification, Pre-Existing
Duty
o Law Library consists of 2-5 parts. The law library must include every rule of law
and only those rules of law that you are going to use to fully dispose of the issue. if
your law library is really long, you're probably discussing more than one issue
1) Statement of general rule definition
2) Definitions of any terms of art that appear in the general rule
"term of art" is any word or phrase that lawyer uses differently from a
layperson
3) Explanations of and elaborations on how the rule plays out when put into
action. Not obvious to the reader.
4) Exceptions to and limitations on the general rule
5) Consequences of the rule when applied (if those consequences are not
obvious)
o Fact File 2-3 sentences. A verbatim transcription of all the facts and only those facts
that you will need and use to dispose fully of the issue. But ONLY those facts that are
relevant to this issue. Oftentimes, this paragraph may only be one or two sentences long.
Read from the offense to the defense. You always want to know the other side's
arguments as well as they do.
o Argument/Conclusion - 4 sentences. Take the major premises (i.e., principles) from our
Law Library and apply those to our minor premises (i.e., instances or occurrences) from
our Fact File to reach a conclusion about the issue.
If A then B. If conversation was had before the deal was consummated, that
conversation is subject to parole evidence rule. Conversation was before the
deal; therefore it is subject to the parole evidence rule.
Same structure as LSAT. Premise premise conclusion
In this paragraph, use all of your premise indicator and conclusion indicator
words
premise: because, since
conclusion: thus, therefore, accordingly, hence
Hallmarks of Good Legal Writing
Organization
Prioritize emphasis on big stuff.
Easy to follow
Boring
Predictable
No surprises, twists, turns, drama
UNIFORM STRUCTURE
BRICK-BY-BORING-BRICK
SELF-REVEALING STRUCTURE
REPETITIVE STRUCTURE
* professional
* considerate of the reader
Law Library: introduce this paragraph with a citation or structure that says 'here comes my law"
o
Citation to the specific source of the following law. Law Library: should be universally
phrased, i.e., do not ever use specific names, dates, events, etc., from the facts in the LL
"FRCP Rule 56 provides that ....."
"Under the 14th Amendment to the U.S. Constitution, ...."
"According to the court in International Shoe,...."
o
Give the procedural context for how this law comes up:
"In order to prevail on a theory of battery, the plaintiff must show...."
"In order to prove the defendant guilty of murder, the prosecutor must show...."
o
Citation to the general source of the rule
"At common law, battery was defined as ....."
"Under the FRCP, ...."
o
Phrase the rule as a "rule" or a "definition"
"Battery is defined as...."
"The rule for false imprisonment is ...."
Fact File - specific only to this case and doesn't include any law or argumentation. Delete irrelevant
facts that happen to be intermingled with the relevant facts.
o
"Here, ...."
o "The facts indicate that....."
o "According to the facts in the present case,...."
Argument/Conclusion: characterized by words of argumentation
o
Clearly indicate your logical structure by using classic premise and conclusion indicators,
hopefully an indicator in almost every sentence
o
Premise: because, since, assuming that, provided that, given that
o
Conclusion: Thus, therefore
Second conclusion in a complex argument accordingly to introduce the second
conclusion.
example:
prem 1
prem 2
"Thus" - subsidiary conclusion
"Accordingly" - main conclusion
Do NOT use "so". Ultimately not so much
Factor-based analysis, all the factors are combined to create a sort of total and then that total is
compared to a threshold; if the total exceeds the threshold, then the result1; if it fails to exceed the
threshold, then result2
o
Factor-based: stew rule
TO DO
Download outlines
Commit to school and read books and material
Round up essay prompt (Q&A series)