Torts and Cyber Torts

Basis of Tort Law
Doing business today involves risks, both legal and financial.
A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest.
There are intentional and unintentional (negligence) torts.
Intentional Torts against Persons and Business Relationships
The person committing the tort, the
Tortfeasor or Defendant must “intend” to commit the act. 
Intend means: Tortfeasor intended the consequences of her act; or She knew with substantial certainty that certain consequences would result.
Types of Intentional Torts
·               Assault and Battery.

·               False Imprisonment.
·               Infliction of Emotional Distress.
·               Defamation.
·               Invasion of Privacy.
·               Business Torts.
·               Assault and Battery
ASSAULTis an intentional, unexcused act that:
Creates a reasonable apprehension of fear, or Immediate harmful or offensive contact.
BATTERY is the completion of the Assault:
·               Intentional or Unexcused.
·               Harmful, Offensive or Unwelcome.
·               Physical Contact.
Defenses to Assault & Battery
·               Consent.
·               Self-Defense (reasonable force).
·               Defense of Others (reasonable force).
·               Defense of Property.
·               False Imprisonment
False Imprisonment is the intentional:
·               Confinement or restraint.
·               Of another person’s activities.
·               Without justification.
Merchants may reasonably detain customers if there is probable cause.
Intentional Infliction of Emotional Distress
An intentional act that is:
Extreme and outrageous, that Results in severe emotional distress in another.
Most courts require some physical symptom or illness.
Right to free speech is constrained by duty we owe each other to refrain from making false statements.
Orally breaching this duty is slander; breaching it in print or media is libel
Gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community.
Publication requires communication to a 3rd party.
Damages for Libel
General Damages are presumed; Plaintiff does not have to show actual injury.
General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.
Damages for Slander
Rule: Plaintiff must prove “special damages” (actual economic loss).
Exceptionsfor Slander Per Se. No proof of damages is necessary:
·               Loathsome disease,
·               Business improprieties,
·               Serious crime,
·               Woman is non-chaste.
Defenses to Defamation
·         Truth is generally an absolute defense.
·         Privileged (or Immune) Speech.
Absolute: judicial & legislative proceedings.
Qualified: Employee Evaluations.
Defamation-Public Figures
Public figures exercise substantial governmental power or are otherwise in the public limelight.
To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.
Invasion of Privacy
·         Every person has a fundamental right to solitude freedom from public scrutiny.
·         Use of Person’s Name or Likeness.
·         Intrusion on Individual’s Affairs or Seclusion.
·         Publication of Information that Places a Person in False Light.
·         Public Disclosure of Private Facts.
Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.
Fraudulent Misrepresentation
Fraud is intentional deceit.  Elements:
·         Misrepresentation of material fact;
·         Intent to induce another to rely;
·         Justifiable reliance by innocent party;
·         Damages as a result of reliance;
·         Causal connection.
Fact vs. Opinion.
Wrongful Interference
Tort that interferes with a contractual relationship.
Occurs when:
·         Defendant knows about contract between A and B;
·         Intentionally induces either A or B to breach the contract; and
·         Defendant benefits from breach.
Case 5.1: Mathis v. Liu(2002).
Wrongful Interference
With a Business Relationship occurs when:
Established business relationship;
Tortfeasor, using predatory methods, causes relationship to end; and
Plaintiff suffers damages.
Bona fide competitive behavior is a defense to this tort.
Intentional Torts to Property
Trespass to land occurs when a person, without permission:
Physically enters onto, above or below the surface of another’s land; or
Causes anything to enter onto the land; or
Remains, or permits anything to remain, on the land.
Intentional Torts to Personal Property
Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege.
Disparagement of Property.
Slander of Title or Quality.
Tortfeasor does not intend the consequences of the act or believes they will occur.
·         Actor’s conduct merely creates a foreseeable risk of injury. Analysis:
·         Defendant owed Plaintiff a duty of care;
·         Defendant breached that duty;
·         Plaintiff suffered legal injury;
·         Defendant’s breach caused the injury.
Duty of Care
Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about.
Courts use reasonable person standard (jury) to determine whether duty exists.
Duty of Landowners to invitees.
Case 5.2:Martin v. Wal-Mart Stores, Inc. (1999).
Duty of Care: Foreseeability
The consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event.
Whether an act is foreseeable is generally considered a matter of fact determined by the reasonable person standard (jury).
Duty of care varies, based on the Defendant’s occupation, relationship to Plaintiff.
Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice.
Injury and Damages
To recover, Plaintiff must show legally recognizable injury.
Compensatory Damages are designed to reimburse Plaintiff for actual losses.
Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.
Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries.
·         Causation in Fact, and
·         Proximate Cause.
Case 5.3: Palsgraf v. Long Island RR Co. (1928)
Causation in Fact
Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway? 
Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.  Proximate Causation
An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability.
Foreseeability of injury is an important factor.
Think of proximate cause as an unbroken chain of events.
Defenses to Negligence
Assumption of Risk.
Superceding Intervening Cause.
Contributory or Comparative Negligence.
Assumption of Risk
Plaintiff has adequate notice and understanding of the risks associated with an activity.
He knowingly and willingly engages in the act anyway.
Plaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood.
Case 5.4:   Crews v. Hollenbach (1999).
Superceding Cause
An unforeseeable, intervening act that occurs after Defendant’s act that breaks the causal relationship between Defendant’s act and Plaintiff’s injury relieving Defendant of liability.
If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries.
Contributory Negligence
Under common law, if Plaintiff if any way caused his injury, he was barred from recovery.
Most states have replaced contributory negligence with the doctrine of comparative negligence.
The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself.
Comparative Negligence
In determining liability, the amount of damages a Plaintiff causes to herself are subtracted from the amount of damages suffered by the Plaintiff and only the remainder is recoverable from the Defendant.
However, if Plaintiff is more than 50% liable, she recovers nothing.
Special Negligence Doctrines
Res Ipsa Loquiter.
Negligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff:
·         Statute sets out standard of care.
·         Plaintiff is member of class intended to be protected by statute.
·         Statute designed to prevent Plaintiff’s injury.
Special Negligence Statutes
“Danger Invites Rescue” Doctrine.
Good Samaritan Statutes.
Dram Shop Acts.
Cyber Torts
·         Defamation Online.
·         Liability of ISP’s.
·         Piercing the Veil of Anonymity.
·         Spam.
·         Trespass to Personal Property.
·         Statutory Regulation of Spam.


Constitutional Authority to Regulate Business

Before the Revolutionary War, States wanted a confederation with weak national government and very limited powers.
After the war, in 1787, the States voted to amend Articles of Confederation and create a new, federal government that shared power with States.

Constitutional Powers of Government
Constitution established a federal form of government with checks and balances among three branches: executive, legislative and judicial.
National government has limited, enumerated powers delegated from States.
Privileges and Immunities Clause.
Full Faith and Credit Clause.
U.S. Commerce Clause
Power to regulate interstate commerce defined in Gibbons v.Ogden (1824).
Expansion to private businesses began with Wickard v. Fillburn (1942). Today, Commerce Clause it authorizes the national government to regulate virtually any business enterprise, including internet.  Limits: U.S. v. Lopez (1995)
Case 4.1:  Reno v. Condon (2000)
State Commerce
States possess inherent police powers to regulate health, safety, public order, morals and general welfare.
“Dormant” Commerce Clause.
Case 4.2:  Ferguson v. Friend finders. Inc.(2002)
State laws that substantially interfere with interstate commerce will be struck down.
U.S. Supremacy Clause
Article VI of the Constitution “Supreme Law of the Land.”
In case of direct conflict between state and federal law, state law is invalid.
Congress can preempt states.
Federal Taxing and Spending Powers.
Business and the Bill of Rights
Bills of Rights are not absolute.
Originally the Bill of Rights was a limit on the national government’s powers.
During the early 1900’s, the Supreme Court applied the Bill of Rights to the States via the “due process” clause of the 14th amendment.
Free Speech
Afforded highest protection by courts.
Symbolic Speech.
§Texas v. Johnson (1989).
§R.A.V. vs. City of St.Paul(1992).
Commercial Speech
Advertising is protected speech.  Restrictions must:
§Implement substantial government interest;
§Directly advance that interest; and
§Go no further than necessary.
Case 4.3: Bad Frog Brewery (1998).
Corporate Political Speech
Afforded significant protection by the first amendment but not to the degree of speech of natural persons.
First National v. Bellotti(1978).
Consolidated Edison v. Public Service Commission (1980).
Unprotected Speech
Certain types of speech are not protected by the first amendment:
§Obscenity (Miller v. California).
§Fighting Words.
Online Obscenity
§CDA, COPA, Children’s Internet Protection Act.
Freedom of Religion
First amendment many neither prohibit the “establishment” nor prohibit the “free exercise” of religion.
The first amendment does not require complete “separation of church and state.”
First amendment mandates accommodation of all religions and forbids hostility toward any.
Zorach v. Clauson(1952) and Lynch v. Donnelly (1984).
First amendment guarantees the “free exercise” of religion.
Employers must reasonably accommodate beliefs as long as employee has sincerely held beliefs.
§Frazee v. Illinois(1989).
Searches and Seizures
Fourth amendment requires  warrant with “probable cause.” 
Warrantless exceptions exist for “evanescent” evidence.
Searches of Business:  generally business inspectors must have a warrant.  Marshall v. Barlow’s(1978).
Fifth amendment guarantees no person can be compelled to testify against himself in a criminal proceeding.
Does not apply to corporations or partnerships.
Due Process and Equal Protection
5thand 14th amendments provide “no person shall be deprived of life, liberty or property without due process of law.”
Procedural and Substantive issues.
Procedural Due Process
Procedures depriving an individual of her rights must be fair and equitable.
Constitution requires adequate notice and a fair and impartial hearing before a disinterested magistrate.
Substantive Due Process
Focuses on the content or substance of legislation.
Laws limiting fundamental rights (speech, privacy, religion) must have a “compelling state interest.”
Laws limiting non-fundamental rights require only a “rational basis.”
Equal Protection
Strict Scrutiny.
Laws that affect the fundamental rights of similarly situated individuals in a different manner are subject to the “strict scrutiny” test. Any “suspect class” (race, national origin) must serve a “compelling state interest” which includes remedying past discrimination.
Intermediate Scrutiny.
Applied to laws involving gender or legitimacy.
To be constitutional laws must be substantially related to important government objectives.
EXAMPLE: Illegitimate teenage pregnancy).
Rational Basis Test.
Applied to matters of economic or social welfare.
Laws will be constitutional if there is a rational basis relating to legitimate government interest.
Privacy Rights
Fundamental right not expressly found in the constitution, but derived from 1st, 5th and 14th amendments.
Laws and policies affecting privacy are subject to the compelling interest test.

Court Procedures (Stages of Litigation)

American and English court systems follow the adversarial system of justice. Each client is represented by an attorney although a client is allowed to represent herself (called “pro-se”). The American Court system follows procedural rules that ensure due process.

Procedural Rules

Court systems developed around the common law concept of “due process” which requires adequate notice and a fair and impartial hearing.
For example: All federal trials are governed by the Federal Rules of Civil Procedure and Federal Rules of Evidence.

Consulting an Attorney

Generally, the first step in litigation is contacting any attorney to seek qualified legal advice.

  • Legal Fees (hourly vs. contingent fee).
  • Settlement Considerations.

Pre-Trial Procedures

  • Pleadings.
  • Discovery.
  • Pre-Trial.
  • Trial.
  • Post-Trial.

First Stage Pleadings-Complaint

  • Prepare Pleadings
  • File Petition/Complaint.
  • Court acquires jurisdiction over subject matter and Plaintiff.

  • Facts: what happened?
  • Prayer: Court relief.


Defendant served with Complaint and Summons.
Court acquires Personal Jurisdiction over Defendant (person or corporation).
Corporate Defendants served via Registered Agent. If the Defendant is out-of state, Court can acquire jurisdiction by “long-arm” statutes.


The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint.
In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.

Defendant’s Answer

  • States General Denial.
  • Move for Change of Venue.
  • Allege Affirmative Defenses.
  • Counter Claim against Plaintiff.

Answer-Affirmative Defense

Defenses in which the defendant essentially claims that even if all of the plaintiff’s allegations are true, the plaintiff cannot win because there is a more powerful law on the defendant’s side that will allow the defendant to win.
Fraud is an example of an affirmative defense that might be asserted in a breach of contract case.
Burden of proof is on the Defendant to show fraud actually took place.

Answer-Counter or Cross Claims

A counterclaim is a lawsuit filed by the Defendant against the Plaintiff, in response to the original complaint. A cross-claim is against a co-Plaintiff or co-Defendant.

Answer-Motion to Dismiss

Defendant can move the Court to dismiss the Action for various reasons, such as:

  • The Court lacks jurisdiction.
  • The Plaintiff has failed to make all of the allegations, in his Complaint, that the law requires (i.e. the plaintiff has failed to state a cause of action).

  • Move to Dismiss.
  • Motion for Judgment on Pleadings.
  • Motion for Summary Judgment.

Second Stage Discovery

Discovery is the process by which parties obtain information from the opposing party prior to trial.

  • Depositions & Interrogatories.
  • Requests for Admissions.
  • Requests for Production Of Documents, Object and Entry.

Third Stage Litigation-Pretrial

  • Mediation-Arbitration.
  • Disposition without Trial.
  • Default Judgments.
  • Dismissals (With/Without Prejudice).
  • Summary Judgment.
  • Settlement.
  • Pre-Trial Orders.

The Trial

Trial is fundamentally an evidence presentation and authentication procedure. To prevail in a civil trial, Plaintiff must introduce a preponderance of competent evidence with respect to each disputed allegation in order to prove it.
The Defendant will “object” to Plaintiff’s evidence and the judge will rule on each objection. If the judge “overrules” the objection, the evidence is admitted for the jury to consider. If the judge “sustains” the objection, the evidence is not admitted into the trial.

Bench Trial (no jury).

Jury Selection.

  • Voire Dire.
  • Challenges/Pick the Jury.
  • Impanel Jury.
  • Alternate Jurors.
  • Opening Statements.

Plaintiff’s Case—Evidence

Witnesses- Direct examination vs. Cross X.

Admissibility of evidence decided by judge. Parties object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted into the trial.
Party may impeach the testimony or credibility of opposing witness by showing prior inconsistent statements and/or Perjury. Defendant’s Case.

  • Closing Arguments.
  • Jury Instructions and Deliberations.

Verdict in Criminal case

Burden of proof is “beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.

Verdict in Civil Cases

Generally, burden of proof is by “preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jury.
Judgment is the Court’s acceptance and recording of the jury’s verdict.

Post Trial Motions

Once the trial is concluded, a dissatisfied party may: File a Motion for a New Trial.
Case 3.3: LeBlanc v. American Honda Motor Co (1997).
Ask that the judge enter a judgment contrary to the verdict (JNOV) rendered by the jury.

The Appeal

A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial.
The party filing the appeal (Appellant) files a brief that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on Appellant’s behalf.
Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.

Enforcing the Judgment

Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally required to comply with its terms.
Defendants who will not voluntarily comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.

Courts and Alternative Dispute Resolution

The Judiciary’s Role In American Government
Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote:
“It is emphatically the province and duty of the judiciary to say what the law is….”
Basic Judicial Requirements
Jurisdiction: “Juris” (law) “diction” (to speak) is the power of a court to hear a dispute and to “speak the law” into a controversy and render a verdict that is legally binding on the parties to the dispute. 
Jurisdiction over Persons
Power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate.
Courts use long-arm statutes for non-resident parties based on “minimum contacts” with state.
Case 2.1: Cole v. Mileti (1998).
Jurisdiction over Property
Also called “in rem” jurisdiction.
Power to decide issues relating to property, whether the property is real, personal, tangible, or intangible.
A court generally has in rem jurisdiction over any property situated within its geographical borders.
Subject Matter Jurisdiction
This is a limitation on the types of cases a court can hear, usually determined by federal or state statutes.
For example, bankruptcy, family or criminal cases.
General (unlimited) jurisdiction.
Limited jurisdiction.
Original and Appellate Jurisdiction
Courts of original jurisdiction is where the case started (trial).
Courts of appellate jurisdiction have the power to hear an appeal from another court.
Federal Court Jurisdiction
“Federal Question” cases in which the rights or obligations of a party are created or defined by some federal law.
“Diversity” cases where:
The parties are not from the same state, and,
The amount in controversy is greater than $75,000.
Exclusive vs. Concurrent Jurisdiction
Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case.
Concurrent: more than one court can hear the case.
Venue is concerned with the most appropriate location for the trial.
Generally, proper venue is whether the injury occurred.
In order to bring a lawsuit, a party must have “standing” to sue.
Standing is sufficient “stake” in the controversy; party must have suffered a legal injury.
Case 2.3:  High Plains Wireless LP vs. FCC (2002)
Trial Courts
Courts of record-court reporters.
Opening and closing arguments.
Juries are selected.
Evidence, such as witness testimony, physical objects, documents, and pictures, is introduced.
Witnesses are examined and cross-examined.
Verdicts and Judgments are rendered.
Appellate Courts
Middle level of the court systems.
Review proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law.
Generally, appellate courts will consider questions of law, but not questions of fact.
Supreme Courts
Also known as courts of last resort.
The two most fundamental ways to have your case heard in a supreme court are:
Appeals of Right.
By Writ of Certiorari.
Alternative Dispute Resolution
Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve.
There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.
ADR describes any procedure or device for resolving disputes other than the traditional judicial process.
Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets.
Most common:negotiation, mediation, arbitration.
Less than 10% of cases reach trial.
Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case.
Successful negotiation involves thorough preparation, from a position of strength.
Assisted Negotiation
Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rdparty (e.g., a retired judge) who renders a non-binding “verdict.”  This facilitates further discussion and settlement.
Expert evaluations.
Conciliation: 3rdparty assists in reconciling differences.
Involves a neutral 3rdparty (mediator).
Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.”
Advantages: few rules, customize process, parties control results (win-win).
Disadvantages: mediator fees, no sanctions or deadlines.
Many labor contracts have binding arbitration clauses.
Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official. 
Recall the 1997 UPS strike when US. Labor Secretary Alexis Herman helped arbitrate the strike.
Arbitration Disadvantages
Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence.
Arbitrators do not have to issue written opinions.
Generally, no discovery available.
Arbitration Process
Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.
Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.
Providers of ADR Services
Non-profit organizations:
American Arbitration Association.
Better Business Bureau.
Online Dispute Resolution
Also called ODR
Uses the Internet to resolve disputes.
Still in its infancy but is gaining momentum.
International DisputeResolution
Forum Selection and Choice-of-Law clauses in contracts govern the transaction.
Arbitration clauses are generally incorporated into international contracts.

Introduction to Law andLegal Reasoning

Schools of Jurisprudential Thought

  • Natural Law view.
  • Positivist view.
  • Historical view.
  • Legal Realism view.

Natural Law School

  • Assumes that law, rights and ethics are based on universal moral principles inherent in nature discoverable through the human reason.
  • The Declaration assumes natural law, or what Jefferson called “the Laws of Nature.
  • The oldest view of jurisprudence dating back to Aristotle.

Natural Law By Rev. Martin Luther King Jr.

Letter from the Birmingham Jail April 16, 1963.
There are two types of laws: just and unjust laws.

  • A just law is a man-made code that squares with the moral law .
  • An unjust law is a human law that is not rooted in eternal and natural law.
  • An unjust law is a code that is out of harmony with the moral law.

The Positivist School

  • Law is the supreme will of the State that applies only to the citizens of that nation at that time.
  • Law, and therefore rights and ethics, are not universal.
  • The morality of a law, or whether the law is “bad or good,” is irrelevant

The Historical School

  • Emphasizes the evolutionary process of law
  • Concentrates on the origins of the legal system
  • Law derives its legitimacy and authority from standards that have withstood the test of time.
  • Follows decisions of earlier cases

Legal Realism

Jurisprudence that holds law is not simply a result of the written law, but a product of the views of judicial decision makers, as well as social, economic, and contextual influences.

Sources of American Law

  • U.S and State Constitutions.
  • Statutory Law—federal, state and local.
  • Administrative regulations and decisions.
  • Case Law and Common Law Doctrines.

The Common Law Tradition

American law is based largely on English Common Law which was based largely on traditions, social customs, rules, and cases developed over hundreds of years.
At common law, there were two separate court systems with two different types of remedies:


  • Also called “king’s courts” where judges were appointed by the king.
  • Remedies limited to those provided at law, i.e., land, chattel, money.
  • Judges resolved disputes by application of rules of law to the facts of the case before the court.

Courts of Equity

  • Court of equity called courts of chancery in Delaware
  • Equitable relief was sometimes available in instances where a strict application of the law to the facts of the case compelled a result that was legal but unjust.
  • Equitable Maxims.

Legal and Equitable Remedies Today

Today federal and state courts of general jurisdiction have consolidated remedies at law and remedies at equity.
Generally, the same court can fashion a remedy that includes both damages and equitable or injunctive relief.

Stare Decisis

  • Stare decisis is a Latin phrase meaning “to stand on decided cases.”
  • Stare decisis Makes the law stable and predictable.
  • Stare decisis Increases judicial efficiency by relieving courts of having to reinvent legal principles for each case brought before them.

Stare Decisis and Precedent

  • Stare decisis is “judge made law” based on precedent.
  • Precedents are judicial decisions that give rise to legal principles that can be applied in future cases based upon similar facts.
  • Precedents and other forms of positive law, such as statutes, constitutions, and regulations, are referred to as binding authority and must be followed.

Cases of “First Impression”

In cases of “first impression” where there is no precedent, the court may refer to positive law, public policy, and widely held social values in order to craft the best new precedent.

Stare Decisis and Legal Reasoning

  • Method used by judges to reach a decision.
  • Many courts and attorneys frame decisions and briefs using the IRAC format
  • Issue (What is the question to be resolved?)
  • Rule (What law governs this matter?)
  • Application (Apply the law to the facts)
  • Conclusion (Decision or Verdict)

Types of Legal Reasoning

Deductive Reasoning

Makes use of syllogism, a type of logical relationship involving a major premise and a minor premise.

Linear Reasoning

Proceeds from point to point, with the final point being the conclusion.

Reasoning by Analogy

Analysis that compares facts of present case with facts of similar previously-decided cases.

The Common Law Today

Common law today governs transactions not covered by:

  • statutory law.
  • Restatements of the Law
  • American Law Institute
  • Summarize the common law of most states

Classifications of Law

Every type of law will be either:

  • Civil or Criminal, and either
  • Substantive or Procedural, and either
  • Public or Private.
  • Cyber law is law applied to internet transactions.

Civil Law vs Criminal Law

  • Civil law defines the rights between individuals or individuals and governments.
  • Criminal law defines an individual’s obligations to society as a whole.

Substantive vs. Procedural

  • Substantive law defines or creates the rights and obligations of persons and governments.
  • Procedural law provides the steps one must follow in order to avail oneself of one’s legal rights or enforce another’s legal obligations.