Torts pg 2-34

Chapter 1
Tort Law: Aims, Approaches, and Processes

§ 1. What is Tort Law?

Tort as wrongdoing- Torts are wrongs that are recognized as grounds for a lawsuit. Usually the defendant is at fault in some way, either through intentional harm or unreasonable risk.

Harm required- The wrong must result in some sort of harm to the plaintiff. Usually the harm is physical, but it can be commercial or intangible (i.e. loss of reputation).

Torts, crimes, and contracts- Contracts are usually not considered torts. There is some overlap between torts and crimes, but criminal law is about public interests, while tort law is about individual interests, so there are a lot of places where they don't overlap.

Non-tort systems- There are other systems of recourse for personal injuries besides tort law. Workers' comp is mentioned as one.

Common questions in tort law- (1) What conduct counts as tortious or wrongful? (2) Did the conduct cause the kind of harm the law will recognize? (3) What defenses can be raised against liability if the defendant has committed a tort?

§ 2. The Aims and Approaches in Tort Law- Justice and Policy, Compensation and Deterrence

a. Some Broad (and Conflicting) Aims

(Dobbs, The Law of Torts §§ 8-11 & § 13)

Section 8- Justice, Policy, and Process Aims of Tort Law

Morality or corrective justice- The idea that tort law should right individual wrongs.

Social utility or policy- The idea that tort law should provide a system of rules that are good for society in general (as opposed to individuals).

Process- This is a kind of social utility or policy. The focus is on improving the litigation process (and the assumption is that the litigation process is fundamentally a good thing).

Potential conflicts- The first two are pretty antithetical to each other. Process can sometimes conflict with the first two as well (the most efficient answer for the courts may not serve justice or policy).

Section 9- Ideas of Corrective Justice

Fault and corrective justice- Tort law imposes liability for conduct the law treats as wrong- this pretty much goes with corrective justice ideas. However, corrective justice thinks that in cases where the defendant is not at fault for causing the plaintiff's harm, the defendant should not be held liable.

Strict liability and corrective justice- Strict liability means you can be held liable even if you aren't at fault. This can go along with corrective justice if by some custom you would be held responsible anyway. [Why does the existence of a custom change the idea of justice?]

Uniting the potential for gains and losses- Some people think that strict liability is morally based (and therefore a part of corrective justice). The general idea is that if you are entitled to the gains you receive from a certain course of action, then you should also be responsible for the losses. This doesn't always work with corrective justice when the actors are two humans in a no fault situation.

Fault again- Most of tort law cases turn on the idea that the defendant is at fault. At least for these cases, tort law starts with corrective justice ideas even if they are influenced by pragmatic, process or policy considerations.

Section 10- Compensation, Risk Distribution, Fault

Risk distribution or loss spreading- The idea that tort liability should be strict or expansive in order to secure compensation for more injured persons. Some defendants should be liable for all harms they cause regardless of fault because they have the means to distribute the risk- i.e. corporations.

Limited acceptance of risk distribution arguments- Common law of tort has not generally adopted the idea that compensation is more important than justice or that liability should be strict; the latter are still rare.

Moral and policy reasons for limiting compensation to cases of fault- The legislatures may be better suited to determining risk compensation and enacting it (i.e. workers' comp). If compensation is guaranteed, it may actually reduce the deterrent effect. Third, the tort system is certainly not the most cost-effective way to secure compensation.

Section 11- Fostering Freedom, Deterring Unsafe Conduct; Economic Analysis

Deterrence- If people know certain actions have negative consequences, they will usually avoid them.

Deterrence in corrective justice and social policy systems- Each approach wants to deter different sorts of things.

Economic analysis- A particular kind of social policy consideration which weighs the good of the economy and encouraging enterprise against individual complaints.

Section 13- Process Values in Tort Law

Adopting, formulating, and applying tort rules- Rules adopted must be seen understood and applied at the least by litigation professionals. Without rules, the judges would suspect and the system in a sense unjust.

Process goals- No authoritative list of process values guides judges, but some are: justice/policy, treating people like humans, and practical concerns.

Loose rule formulation that diminishes judicial accountability- Rules that are too abstract make it easy for judges to simply do whatever they like. Published opinion subject judges to peer review.

Tight rule formulation that eliminates needed flexibility- Too tight a rule just prevents judges from doing their jobs- that is, using their judgment.

Rules guiding lawyers' investigation and arguments- "Rules often attempt to reflect the way people should behave even if they have not read the statutes and the cases." Since the people who actually read the rules are lawyers, the judge must write the rules with them in mind as well. [Ask for clarification... how does this guide investigation?]

Rules failing to specify provable facts- Rules suck when they call for evidence that can't reasonably be proved- like someone's subjective state of mind.

b. Applying Some Approaches

Prosser v. Keeton
143 Unrep. Case 1113.

§ 3. Implementing Tort Law Purposes with Damages Awards

Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).

Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).

Chapter 2
Reading Torts Cases: Trial Procedures

§ 1. Looking for Facts, Rules and Reasons

Reading cases to understand principles and predict law- The skills involved in briefing a case are important.

Rules- Sometimes judges state the rules they are using; more often they simply state the part of the rule at issue in a case. Context is key.

Reasoning- You can interpret by following the judge's reasoning- what they emphasize can tell you a great deal about what the rule is and isn't.

Facts- The facts of a case can influence a judge's reasoning- for instance, in a case about a young child, speaking of "a child's liability" may really be speaking of a very young child.

Process and issues- How did we get to this point and why are we here? Also, the spheres of judges and juries are important and often a main issue.

Application of rules- is not easy. How does the rule apply? How does the rule interact with other rules?

Rules point lawyers to evidence required and arguments available- 'Nuff said.

§ 2. Procedures at Trial

1. Complaint

2. Answer

3. Selection of a jury

4. Opening statements

5. Plaintiff's case

6. Defendant's case

7. Closing arguments

8. Instruction to the jury.

§ 3. Procedures Raising Legal Issues

a. The Motion to Dismiss or Demurrer "Take all the facts stated in the complaint as if they were proved; even so, they do not show a valid legal claim." Defendant's motion; comes early in a case, before the answer is filed.

b. The Motion for Summary Judgment is based on (a) a showing of new facts in addition to those stated in the complaint and possibly in contradiction of them; (b) a showing that there is no real dispute about these new facts; and (c) a showing that on these new facts, the law compels judgment for the moving party. Usually made by the defendant, saying the legal rules do not permit the plaintiff to win.

c. Objections to Evidence and Offers of Evidence Evidence that is not relevant should be excluded, especially if it is likely to mislead or prejudice a jury. Attorneys must raise this point; if they fail to do so, they cannot complain later on. Every time a judge sustains or overrules, they are making a quick statement on the rule (even if they never explain).

d. The Motion for Directed Verdict is usually done by a defendant after the plaintiff's evidence and again after the defendant's evidence. "Such motions assert that the proof offered by the plaintiff is legally insufficient to warrant a jury's verdict for the plaintiff." Can be done if no reasonable person could disagree on the pertinent facts. Based on evidence produced in full at the trial, not initial allegations or the claim that the evidence is undisputed.

e. Proposed Instructions and Objections to Them Instructions are statements of law to the jury. "The substantive legal issue raised by an instruction, then, is whether it correctly states the law." Lawyers have the burden to object.

f. The Motion N.O.V. - A Post-trial Motion for Judgment as a Matter of Law The same as a motion for directed verdict (that is, based on the same things), but submitted after the trial. Turns on legal issues, not factual ones. The judge does not have to give a direct verdict during the trial; the judge can change their mind later if presented with this motion.

g. The Motion for New Trial "The parties are entitled not only to a trial but one that is carried out without any serious legal error." There's another kind of this motion that argues that either the jury found against the weight of evidence (fact problems) or that the compensation was unconscionably high or low. The judge can't simply change what the jury said; they can, however, grant a new trial.

Intro to Law, pg 213-226

Van Beeck v. Sabine Towing Co.
Supreme Court of the United States, 1937.
300 U.S. 342, 57 S. Ct. 452, 81 L.Ed. 685.

Facts: The Merchant Marine Act of 1920 gives a cause of action to the rep of a seaman who dies in the course of his employment by his employer's negligence. In this case, the beneficiary of the seaman dies during the course of the suit.

Procedure: Trial court dismissed the claim (for losses up to the beneficiary's death); intermediate appellate court affirmed.

Issue: Does liability abate when the beneficiary of the cause of action dies?

Holding: No.

Reasoning: The losses suffered by the beneficiary don't just disappear upon death and should be applied to their estate, especially as this is in line with what the statute was designed to fix. The statute exists to prevent negligence torts from evaporating at death, so her cause of action should continue as well beyond her death.

Mobil Oil Corp. v. Higginbotham
Supreme Court of the United States, 1978.
436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581.

Facts: A helicopter crashed on the high seas, killing the pilot and three passengers. The passengers' widows brought suit against the petitioner.

Procedure: District Court accepted admiralty jurisdiction and found that the deaths were due to the petitioner's negligence; they awarded damages for pecuniary losses. The District Court held that the law did not authorize recovery for loss of society. Court of Appeals reversed.

Issue: Does the law authorize loss of society damages?

Holding: No.

Reasoning: Congress specifically limited DOHSA beneficiaries to recovery of pecuniary losses. There is no room for pretending other losses might be allowed. (Dissent held the opposite, interpreting the statute to say that the beneficiaries should at the least be able to recover their pecuniary losses, and that listing only pecuniary losses did not exclude any other kind of loss from recovery.)

Clymer v. Webster
Supreme Court of Vermont, 1991
156 Vt. 614, 596 A.2d 905

Facts: Webster got drunk at a bar, left and in driving home, struck and killed a girl. The girl's parents sued both the driver and the bar. They settled with the driver.

Procedure: The trial court ruled for the defendants, saying that the damages (medical and funeral expenses and lost services and guidance) did not exceed the $120k already recovered from the negligent driver.

Issue: Does it matter that the decedent was an adult and not a minor child?

Holding: No.

Reasoning: The statute in question was remedial and therefor should be construed liberally.

Hill v. City of Germantown
Supreme Court of Tennessee, 2000.
31 S.W.3d 234

Facts: Plaintiffs sued the City of Germantown because their wives were killed in the course of a high speed chase conducted by a city cop who was negligently trained.

Procedure: Trial court found for the plaintiffs and awarded pecuniary damages but refused loss of consortium. Nevertheless, The plaintiffs each recovered the maximum permitted by the Governmental Tort Liability Act. Court of Appeals affirmed- loss of consortium damages were not not available at the time their causes of action accrued, and Jordan v. Baptist Three Rivers Hosp. could not be applied retroactively.

Issue: Does the Supreme Court of Tennessee decision, Jordan v. Baptist Three Rivers Hosp., apply retroactively to this case?

Holding: Yes, though it hardly matters because the plaintiffs cannot be awarded any more damages under the Governmental Tort Liability Act.

Reasoning: The Supreme Court's decision in Jordan didn't say that it could be applied retroactively, but that was an oversight and they are fixing it in this case.

Intro to Law, pg 119-124

Chapter IV: The Ratio Decidendi of a Case

A. Overview

• Only those statements in an earlier decision that constitute the ratio decidendi of that case are held to be binding. Everything else may be disregarded: these are called dicta or (if they are particularly useless) obiter dicta.
• As you may have guessed, what makes up the ratio decidendi of a case is pretty controversial.
• Not every analysis or rule a court applies in determining a holding counts as ratio decidendi.
  
• Some say that the ratio decidendi consists of the parts of the opinion that explain the rules of law applied by the court, that were also required to determine the issues.
• Others say that it is found by analyzing the facts of the precedent case and the judge's decision based on these facts. This is mostly an argument against the above, saying that a judge may not apply a rule at all, or formulate a rule that is too broad or narrow. It also mentions that coequal judges' opinions may have no influence over each other.
• Future judges are free to emphasize different aspects of a precedent case in order to promote a more consistent law.
• Still others claim that is it silly to think that each decided case has its own ratio decidendi. Only comparisons of many cases on a problem can provide any real guidance. (Ethnology versus Ethnography)
• The editors suppose that after a great deal of arguing and time, it will then be possible to tease out the rule or principle and then apply it consistently for a while.
  

Curtis v. Loether

Supreme Court of the United States, 1974. 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260.

Facts: Plaintiff claimed defendants discriminated against her by refusing to rent her an apartment because she was black; plaintiff sought punitive and compensatory damages. Defendants moved to have a jury trial; plaintiff objected.

Procedure: "District Court held that a jury trial was neither authorized by Title VIII nor required by the Seventh Amendment and denied the jury request." "The Court of Appeals reversed on the jury trial issue... the court concluded essentially that the Seventh Amendment gave respondents the right to a jury trial in this action, and therefore interpreted the statute to authorize jury trials so as to eliminate any question of its constitutionality."

Issues: Did the claim warrant a jury trial? Was the Court of Appeals correct?

Holding: Yes and Yes.

Reasoning: "The relief sought here-actual and punitive damages-is the traditional form of relief offered in the courts of law." "We have often found the Seventh Amendment applicable to causes of action based on statutes."

Concurring/Dissenting Opinions: None presented in our text.

Analysis: Basically, they found that the defendant was seeking legal relief and not equitable relief, and that that distinction is the heart of the Seventh Amendment's interpretation. Also, they made it clear that the Seventh Amendment was not designed to freeze the common law as it was in 1791, declaring everything enacted after as something else.

Rogers v. Loether

Rogers v. Loether
United States District Court, E.D. Wisconsin, 1970. 312 F. Supp. 1008

Facts: Plaintiff claims that defendants discriminated against her by refusing to rent her an apartment because she is black; plaintiff requested money damages, punitive damages and attorney's fees. Defendants requested a jury trial, and plaintiff objected.

Issues: Does the claim warrant a jury trial?

Holding: No.

Reasoning: "I find that this cause of action is a statutory one invoking the equity powers of the court, by which the court may award compensatory and punitive money damages.. so that complete relief may be had. The action is not one in the nature of a suit at common law, and therefore there is no right to trial by jury on the issue of money damages in the case."

Concurring/Dissenting Opinions: (not presented in our text)

Analysis: ???

Intro to Law, pg 56-58

E. The Merger of Law and Equity

• The dual system of equity and common law was complex, confusing and obnoxious- so obnoxious that even the lawyers didn't like it.
• The same wave of reform that putatively abolished forms of action also unified the jurisdiction of courts in England and America. David Dudley Field's Code of Civil Procedure in 1848 put together a single mode of pleading and procedure that was adopted by New York and then California and most of the other states.
• But like forms of action, the merger was more putative than anything else. The relief given under each system is still different; and people still must prove that remedy at law is inadequate in order to gain inequitable relief.
• "When equitable relief is sought, there is no right to a jury trial." Federal law provides the right for a jury trial in common law cases only, while equity is left up to the states, who usually dismiss jury trials as too expensive.
• "The continuing significance of the distinction between law and equity is emphasized by cases in which the legislature has created a new statutory remedy, and the courts are asked to determine whether a person claiming relief under the statute is entitled to a jury trial." For example, you have a right to a trial when acting for damages for housing discrimination under the Civil Rights Act of 1968.
• "Often this mode of analysis leads to inconclusive results, and the final determination whether the remedy gives rise to a right to jury trial turns on the solicitude of particular courts for jury trials as a matter of social policy."

Intro to Law, pg 46-51

C. Equitable Jurisdiction and the Court of Chancery

1. Equity and Justice

• Equity and common law were rival systems. Equity was associated with the Court of Chancery.

Aristotle, The Nichomachean Ethics

• Justice and equity are neither identical nor generically different. This is weird.
• Equity is essentially just; it's superiority to justice does not stem from their differences.
• Since humans are pretty original when it comes to squabbling, it is impossible to make a general statement that covers all possible specific situations. Equity acknowledges the limits of a general statement and attempts to give justice to the outliers without cancelling in anyway the original general statement.

St. Germain, The Doctor and the Student

• "St. Germain agrees with Aristotle that equity is an exception from the law in cases where the law is deficient because of its generality."
• "And so it appeareth that equity rather followeth the intent of the law, than the words of the law. And I suppose that there be in like wise some like equities grounded on the general rules of the law of the realm."
• A couple of examples are given, one about cattle and the other about bums. The gist is that the law shouldn't have to list all the possible exceptions to an otherwise well crafted rule.

2. The Court of Chancery and the Development of Equity

• Early common law was quite flexible and thus equitable. However that changed as the Chancery lost it's ability to make writs.
• Though the king delegated his power to the common law courts, he also reserved the power to do justice by executive fiat. Thus people could petition the king and his council for relief, not as owed to them by their rights but as given to them by the king's mercy.
• Any suits that were not declared frivolous were referred to the chancellor, who was also a member of the council. At first he was merely a delegate, but over time petitions were decided by the chancellor in his own name. The bureaucracy took hold here, too, but equity retained it's flexible nature anyway.
• At first, the chancellor's jurisdiction was vague and had more to do with the conscience of the man in question than anything else. They certainly didn't attempt to lay down patterns for successive chancellors to follow. However, eventually it was recognized that there were certain types of cases in which the chancellor would provide relief.
• Uses- "If the legal estate in any property was held by A 'to the use' of B, the chancellor would give effect to the 'equitable' rights of B, while fully recognizing that the legal title to the property was in A." Enforcing this over time led to trusts.
• Contracts- if the contract (or other legal transaction) came to being through fraud, mistake or duress, the chancellor would grant much greater redress than the common law was capable of.
• Contracts again- the chancellor would often enforce an obligation created simply by mutual agreement. Common law, by comparison, demanded either a sealed document or a performance by one party to the contracts (covenant and debt). Also, common law would only grant damages, while occasionally the chancellor would issue a decree of specific performance compelling the defendant to fulfill the terms of the the contract. Sometimes the chancellor would award damages as well as compel the fulfilling of the contract.
• If a defendant failed to comply, they would be charged with contempt of court. Indefinite fines or jail terms (civil contempt) were imposed to coerce future compliance, and definite fines or jail terms (criminal contempt) were imposed to punish past violations.
• The chancellor had a lot more freedom to investigate than the judges of the common law courts did, and could pretty well do as he pleased. There were no jury in equity cases.
• The chancellor had a lackey called the master of the rolls. If the MotR heard a case in place of the chancellor, the losing party could appeal to the latter.
• Common law and the chancery were quite bitter rivals. Chancellor Wosley would go as far as to issue decrees preventing parties from appealing to the common law all together, or from having a common law decision enforced.
• The common law courts fought back, of course. Eventually the matter was decided by King James I, in favor of the Chancery.
• After the Commonwealth and the restoration of the monarchy in the 1600s, relations improved. Part of the reason was that it developed rules and precedents that were followed by Chancellors as the equivalents were followed by common law judges. They were still much more flexible and allowed greater discretion to the chancery than common law judges enjoyed.
• Also, after Wosley the chancellor was no longer an ecclesiastic but a secular official. After 1675 they were exclusively lawyers, as well.

Intro to Law, pg 26-37

Chapter II: Common Law, Equity, and the Development of the Anglo-American Court System


A. The Common Law Courts and the Writ System


1. Common Law Courts

• Common law came from the medieval courts of the English king: the Court of Exchequer for the king's property and revenue; the Court of King's Bench for criminal actions and civil actions that breached the peace; and the Court of Common Pleas for all other civil disputes. Like all courts worth the name, they fought over jurisdiction, especially the last two.
  

Excerpt: A.W. Scott & R.B. Kent, Cases and Other Materials on Civil Procedure

• The Earlier English Courts: There were the three just mentioned, plus the Court of Chancery, which covered equity.
• Common Pleas: AKA Common Bench. Magna Carta made sure the court's location was fixed (at Westminster Hall) instead of following the king. It had a Chief Justice and three puisne (puny) judges. It had jurisdiction over it's own things and things brought to it from some local courts; also over common pleas (problems between individuals) but not criminal stuff (aka things against the crown). Exchequer and King's Bench had jurisdiction over some private problems too, but Common Pleas had exclusive jurisdiction over actions to recover land (real actions).
• King's Bench: Criminal cases, and civil actions involving breaches of the peace, and any other actions brought against a person in the custody of the king's marshal of Marshalsea Prison. It expanded to include other civil actions by virtue of that last, by first "arresting" someone on a spurious charge to get them into custody and thus into the court's jurisdiction. Real actions were excepted to this. [In order to start the proceedings, a "bill of Middlesex" was required, which directed the sheriff to arrest the miscreant on a (spurious) charge under the courts jurisdiction, with the actual charge tacked on. Later on an original writ worked too.] Court had the Chief Justice of England and three puisne judges.
• Exchequer: King's property and revenue. Jurisdiction was enlarged by clever uses of a writ of quo minus. The plaintiff would claim to have a debt against the crown that he could not pay due to the defendant refusing to discharge a liability to the plaintiff. Interestingly, the crown seems to have never taken advantage of the claims of debt being made (probably because the crown's personal court gained so much power from people making that claim). Court had a Chief Baron of the Exchequer and three puisne barons.
• Through these little tricks, all three superior courts of common law developed concurrent jurisdiction over actions between subjects, except real actions. Individuals could choose whichever court they wished.
• Exchequer Chamber: If a losing party wanted to try again, they had to obtain a writ of error from the Court of Chancery. The losing party became the "plaintiff in error" and the winning party, the "defendant in error." Courts of error went Common Pleas->King's Bench->House of Lords or Exchequer->Exchequer Chamber. Exchequer Chamber consisted of the Chancellor and Treasurer at first, but later just the Chancellor, with judges of the King's Bench and Common Pleas as assessors. Under Queen Elizabeth, it was provided that a case could go from King's Bench to another Exchequer Chamber composed of the judges of the Common Pleas and Exchequer. In 1830 the old E Chambers were abolished and a new one was created that consisted of judges from all three superior courts (minus whichever one had been in error). From this E Chamber, the case could be carried to the House of Lords as the last resort.
• House of Lords: In theory, Parliament had the power to correct decisions of any lower court, but in practice it was only the House of Lords who did so after the later Middle Ages. Appeals were treated as any other matter of parliament until 1844, when it established that only people who actually knew the law could be involved. Thus the judicial House of Lords consisted of the Lord Chancellor, ex-Lord Chancellors, and other peers who held or had held high judicial office. In 1876 it was increased by Lords of Appeal in Ordinary, to assist the hereditary peers learned in law.
• The Nisi Prius System: England's judicial system formed around contests between the king and local authorities. Pre-1066, it was between the king and his Witan (advisors) on one side and local tribunals on the other. Post-1066, the Norman kings' business was to establish a strong central government within the technological constraints of the time. They did this by sending judges and representitives on circuits throughout the realm.
• The full bench of each court would meet four times a year in Westminster. These times were called Hilary Term, Easter Term, Trinity Term, and Michaelmas Term, and each lasted but a few weeks. They determined all questions that arose during an action, except those during a trial. They could pass judgement on verdicts based on a variety of appeals. Basically, they determined the legality of questionable issues.
• Between these terms, the judges of the bench and others appointed by the king went on "vacation," meaning they did their circuits through the country. Trials would usually be conducted during this period, with appeals going to the superior courts during their terms.

2. Modes of Trial

• Some of the old school English modes of trail were wager of law (compurgation), battle, and the ordeal. The royal courts grew in popularity by using trial by jury over these older methods.
• A jury at the dawn of common law was not quite what a jury is today. Rather, it was a body of witnesses who had been summoned by the king's officials to testify. It was a device for a strong king to collect information.
• Henry II introduced jury trial to civil litigation, using neighbors familiar with the case as jurors. These jurors were used not just as witnesses but also as judges of fact.

3. The Writ System

• When a litigant wanted a royal court to take jurisdiction of a case, he asked the king's chancellor to issue a writ. The chancellor was an ecclesiastic who kept the king's great seal and supervised a staff who prepared all documents issued in the name of the king.

W.P. Blackstone, Commentaries of the Laws of England

• In order to get to the judiciary, a supplicant had to first contact the king via the clerks of the King's Chancellor and get a writ issued. The writ would tell the sheriff to find the accused party and make them do justice to the complainant, or else appear in court and answer the accusations against him. This system was part of a strong kingship; judges saw no cases without the king's approval via writ.

Examples of Early Writs

R. Pound & T. Plucknett, Readings on the History and System of the Common Law

• "William King of England to the Abbot of Peterborough, Greeting: I command and require you that you permit the Abbot of St. Edmund to receive sufficient stone for his church, as he has had hitherto, and that you cause him no more hindrance in drawing stone to the water, as you have heretofore done. Witness the Bishop of Durham (c. 1070-1080 A.D.)."
• These writs were pretty much just executive orders issued by the king.
• At the end of the twelfth century, a new writ came about that simply ordered a sheriff to bring someone before the royal courts to answer for an act. This became the prevailing form used to start things off in the royal courts.
• Writs from the King's Chancery were called "original writs" to distinguish them from writs issued by a court during a judicial proceeding.
• Writs started out as royal favors- permission to use the king's courts for what would otherwise be handled locally. They were executive because each writ covered only one situation.
• They evolved into writs de cursu- writs that were issued "of course" for anyone who could bring his case within a formula found in the existing writs. Lawyers would search the Register for writs that fit their client's case; if none fit, the client was SOL unless the chancellor was willing to make a new writ.
• Since every new writ expanded the jurisdiction of the royal courts, it was a rather political move by the chancellor to draft one. Under a strong king, the feudal lords would perhaps put up with it, but with a weak one there would be trouble. Henry II was particularly good at withstanding the pressures of the feudal aristocracy, and did a great deal to expand the power of the royal courts and common law. However, Henry III was a wuss and during his reign the King's Council (the predecessors of Parliament) enacted the Provisions of Oxford in 1258. This said that the Chancellor could seal no new writs without the sanction of the king and his council- meaning the council, made up of feudal lords, could keep its fingers in the formation of writs.
• Under Edward I, not-a-wuss, the Chancery got some power back thanks to the Statute of Westminster II. True writ innovations were reserved to parliament, but the chancery could issue writs in cases that were similar to pre-existing writs.

Statute Westminster II

• Everything I just said in the last sentence of the paragraph just above, except in fancier language.

B. The Forms of Action at Common Law

1. Introduction

• "Forms of action"- part of the writ system, the things done in a particular writ. Unique procedures were followed in each. As the writs proliferated, it became easier to choose the wrong writ for a particular case, resulting in catastrophe.
• All three royal courts eventually obtained the system of original writs. A writ stated the substance of the plaintiff's claim, as well as the particular mode of pleading and the type of judgment involved. If a plaintiff picked an inappropriate writ, they had to start all over again. "He must play the rules of the game he has chosen." -F.W. Maitland.
• In the latter half of the nineteenth century, both the UK and the US abolished forms of action in favor of a single uniform method of civil action.
• Another Maitland quote: "The forms of action we have buried, but they rule us from their graves."
• This doesn't mean that the law suddenly thinks trespass is the same as assault- only that the form followed in either case is the same. There is still a requirement to prove that the facts of the case fit the characteristics of trespass. The forms have gone but the substance remains.
• The abolition of the forms of action did not create any new rights or remedies- the whole of the system of common law has deep tangled roots in the old system, and there is very little in the new that wasn't in the old. Many of the strange twists modern law takes can be found in the forms of action.
• The next page is 37, but it starts section 2, and it seems odd to only do a sliver of that section, so I'll leave it for now.
  

Intro to Law textbook notes on pages 1-17

Introduction: The Nature and Functions of Law

A. Prefatory Comments

• If you want to know why an institution is the way it is, you need to know what it is designed to accomplish. It is silly to attempt to fix an institution without knowing what it should be doing in the first place. This includes the institution of the law.
• Figuring out what the law is supposed to do is called "Jurisprudence." This is not a Jurisprudence textbook, it is a textbook for noobs. But we're going to try to make you figure it out anyway. Noob.

B. Definitions of Law

• Figuring out what the law is for is hard because nobody agrees except on the most basic of principles (which we will not mention by name). We will however, include a list of many conflicting descriptions of the law! Not only that, but Classic descriptions, which span from 51 BC to 1939 AD. These descriptions seem to be cherry-picked to contradict each other.
• That list wasn't really contradictory. They just emphasized different things. Re-read the list.
• Modern Opinion. These are less contradictory, and most seem to express the idea that without laws we would all just eat each other. There is a particularly ironic one from Martin Luther King, Jr. (Why not Modern Definitions, I wonder?)
• Can I make a paragraph entirely of questions? Also, as a lawyer, do you think you should have a soul?
• The answers to all those questions are sort of in this book. Please don't forget them.

Chapter 1: Law and the Process of Classification

A. The Meaning and Importance of Classification

• Law exists to make people behave. For some (unstated) reason, this cannot be done on an individualized basis; it has to be generally applicable. In order to be generally applicable, we must treat individuals as parts of general categories which will have varying legal rights and responsibilities. Part of the job of the legal system is to put things into categories and explain how things in those categories ought to behave... I mean, do behave.
• Even though you took the SAT and got into college, you might not know what "to classify" means. We're going to spend a paragraph constructing a clever metaphor to explain it for you.
• The law has lots of classifications for people, but the people in question are sometimes rather difficult to classify. This causes problems.
• You're going to have to spew a lot of really convincing bullshit when it comes to this classification thing. Start practicing now.
• Besides the fact that real people are hard to classify, there are a couple other things to know. The first is that laws can also be classified as Permissible and Impermissible thanks to the constitution. The second is that our constitutions likes to treat people equally, which is bloody difficult when classifications mean by definition that you treat them differently.
• Judges are the ones who label laws permissible or impermissible. There are lots of reasons they can do so.
• But lets get back to that equality thing. Basically, classification is OK as long as it serves some good legal objective; the ends justify the means.
• "The constitutional norm of equality under the law does not prohibit classifications which treat people differently, but it does demand that such classifications be justified by some goal other than the unequal treatment itself, and that the classifications serve that goal in some direct or even essential way."
• Let's give you an example of something really unfair, because the problem you are having, I'm sure, is trying to come up with an unfair law. In any case, whether a law is unfair or not is one of the main questions of constitutional law.

B. Some Basic Distinctions and Classifications of the Law

• Most legal definitions are too technical for you to understand, noob. Let's look at some nice, general classifications instead:

1. International Law and Municipal Law

• International law deals with laws between nations, while municipal law deals with law within nations. International law consists mostly of agreements between nations.
• Nations consider themselves sovereign, which makes the idea of international law odd, since there is no higher authority involved. (Apparently the law is by nature hierarchical?) In any case, either sovereignty or international law is a suspect concept.
• Municipal law consists of the laws that apply within a sovereign state.
• PS The Commonwealth of Kentucky and all the other "sovereign states" of the union don't count. Federal law trumps 'em.

2. Civil Law and Common Law

• Most legal systems fall into one of these two categories. (Common law includes equity).
• Civil law stems from the Roman Empire.
• Some civil law countries: Continental Europe (though only loosely in the frozen north), Latin America, Japan, and sorta South Africa.
• Civil law sort of holds in Islamic countries and Russia.
• Chinese law was sort of like Russian law until the Cultural Revolution. During the 60s and 70s law was treated as a reactionary institution not truly necessary in a socialist society.
• Things changed in the 80s because of international trade, though mediation is still preferred to litigation.
• Louisiana has some civil law practices mixed with common law. So do Puerto Rico and Quebec.
• Common law stemmed from medieval England.
• Some common law countries: US, England, Scotland, Ireland, Canada, Australia, and New Zealand. India kinda sorta too.
• "Few generalizations can be made with respect to the legal systems of the black African counties." Um...
• Civil law systems put primacy on the laws and statutes; Common law systems put primacy on the judicial precedents.
• Civil law=inquisitorial, common law=adversarial

3. Public Law and Private Law

• Private Law= Contracts, Torts, and Property (and later, Commercial Law, Trusts and Estates, Corporations, Securities Law and Labor Law).
• Public Law=Con Law, Administrative Law, Taxation, and Trade Regulation
• Procedure counts as public law because it deals with the rules for public organs. This includes Civil Procedure, Evidence, Conflict of Laws, Federal Jurisdiction, and Criminal Law/Procedure.

4. Substantive Law and Adjective Law

• These divisions cut across public and private law. Substantive law is the what; adjective law is the how.

5. Legislation, Case Law, and Customary Law

• Legislation=documents by the legislature=statute or code. Codes are compilations of statutes?
• Executive and administrative law occur as executive orders and administrative regulations, respectively. It is like statutory law.
• Case law comes from the precedents set by the courts, aka judges.
• Judges are bound by legislation unless it is unconstitutional. However, judges may interpret case law however they please unless a court of higher jurisdiction tells them otherwise.
• Legislation and case law interact when interpreting vague or ambiguous legislation. The court with the equivalent jurisdiction decides the case law- SC and the Constitution, Ohio SC and Ohio constitution, unless the little guys do something the big guys don't allow.
• Customary law is kind of law, maybe. It's the law that exists without being handed or written down- like exogamous unilineal descent groups. Basically, it is law without a state to force it. International law could fall into this category.
• Customary practices have a tendency to greatly inform case law in America.

6. Separation of the Legislative, Executive, and Judicial Powers

• America loves separation-of-powers!
• The legislature can draft laws that deal with classes of people and indefinite numbers of situations. Congress has the ability to enact "private laws" that (1) except named individuals from immigration or naturalization laws; (2) grant individuals compensations beyond the Federal Tort Claims act; and (3) waive claims that the Fed Gov't has against individuals under a general law. Most state legislatures are forbidden this power by their state constitutions.
• An executive act is the exercise of gov't power to accomplish some public purpose, like construct a highway. Under our "government of laws," these acts are restricted by many legal rules and regulations.
• Judicial power is used to settle controversies between entities. Judicial acts usually apply to concrete and discrete incidents, and unlike executive acts are almost entirely focused on resolving conflict.
• Each of the three branches has its fingers in each of the other branches businesses, quite legally. Some of these were written into the constitution, while others have developed over time.