SCALES-Intro to Legal

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created 5 years ago by Alice_McElroy
updated 5 years ago by TylerE
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The person who took the (detinue) item can make the choice can give back the item or give them money



actions to get your things back or the exact amount



the plaintiff can force the sale of getting their things back or the money



Power to make and enforce the legal or equitable decision


Common Law precedent

past cases and prior decisions


Common Law

main law that ruled over the land and that can be changed by the courts when the courts see fit



Recovery of a specific amount of money

  • Debt on a record would be a tort award
  • Debt on a statute or law would be like a fine


Breach of a sealed contract

Higher than any other kind of promise



Direct and immediate injury

  • punching someone in the face
  • breaking in their home
  • damages is the only options
  • jury trial

nominal damages

smallest amount of money that can be awarded


trespass on the case

indirect injury and consequential

  • fraud and deceit
  • trial by jury
  • compensatory damages

special assumpsit

unskilled labor causing injury or damages

  • has to be contract involved
  • trial by jury
  • damages only, not compliance
  • negligence

General assumpsit

actions based on the defendants breech of implied promises to pay a debt owed to a plaintiff



suing to recover real property or land


inductive reasoning

Rule can be generalized from particular facts and outcomes


Deductive reasoning

Rule of law clearly dictates the outcome


reasoning by analogy

Rule is extended (or not) to new fact situation, though not covered by express rule, because policy covers situation


dialectical reasoning

Novel problems, novel applications, or competing rules require reasoning not heretofore applied to resolve this kind of problem



  • common law can be applied retroactively but new legislation can only be applied prospectively
  • ex post facto or criminal law cannot be applied retroactively
  • when court decides new rule should not apply to conduct or events that happened previously

mandatory precedent

Binding legislation, any law making body acting in its law making capacity has the power to correct conduct


Persuasive precedent

any law that is not binding is persuasive


Stare Decisis

  • Attitude
  • applied to a limited category of cases
  • not bound by decision
  • high court doesn't have to abide by the old rule
  • helps give foreseeability for attorneys

Ratio Descendi

Reason for the decision

The judge is trying to find the right rule and apply it correctly and determine what the previous justices really meant when rule was applied to old case


Guy v. Livesey

  • Loss of consortium case
  • common law: only husbands can sue for their wives for loss of services
  • Trepessass of assault and batter
  • Mr. Steal Yo Girl case

Felony Merger Doctorine

The common law did not allow a civil recovery for an act that constituted both a tort and a felony

  • under modern law: the old english rules have been replaced by legislation by survival statutes and wrongful death statutes

7th Amendment

  1. if you want a jury
    1. you have to demonstrate this is an action of damages/law
  2. if you don’t want a jury
    1. you have to demonstrate this is an action of equity

Rogers v. Loether 1970

  • Rogers is suing for discrimination on leasing an apt
  • She wanted $1000 to make up for the money she had spent on moving and getting an attorney
  • this was considered equitable damages because she was "getting back to where she started" or court was awarding monies to make the plaintiff whole again
  • case primarily focuses on Amendment 7 because defendant did want a jury and Rogers did not
  • Rogers was able to prove that this was an equitable claim even though monies were awarded and that is why she did not have a trial by jury

Curtis v. Loether 1974

  • Roger did not get a trial by Jury because trial court decided it was a equitable claim
  • this case was brought to the Supreme court and the supreme court ruled this discrimination was a tort which entitled them to a trial by jury

Baldwin v. State 1965 (Vermont)

  • Wife wants to sue for loss of services and relation from her husband
  • husband was hit by a car and was hurt
  • Court rules that wives are unable to sue for loss of consortium even though husbands can
  • court argues that husband can sue for his own damages; which is his paycheck

Whitney v. Fisher 1980 (Vermont)

  • Husband was hurt in 1973 and they were engaged at the time
  • Wife filed in 1976
  • law was changed in 1977
  • the litigation started in 1980
  • Wife wanted court to apply a rule to a incident that happened in '73 but the rule was not in effect until '77
  • law/rule in question is that either spouse can sue for loss of consortium
  • court denies claim because she was not a spouse during incident AND statutes are not applied retroactively

Nicholson v. Hugh Chatman 1980 (North Carolina)

  • Husband was injured by negligent 3rd party
  • wife wants to sue for loss of consortium and the trial court denies the claim because there is no statute in NC at the time about wives suing for loss of consortium
  • This claim was ended up in the supreme court with the justices reversed the law and allowed both spouses to sue for loss of consortium
  • court told Nicholson to sue for both complaints at same time to not burden the courts

Cox v. Hayworth 1981 (North Carolina)

  • Doctor performs myleogram on husband without permission and husband is injured because of it in 1978
  • Wife wants to sue for loss of consortium (along with the existing claims from the husband)
  • Doctor argues that rule (both spouses can sue for loss of consortium) should not be applied retroactively because during the act of negligence the rule was not recognized
  • The court did not care about Doctors arguments because of joinder (they can argue all claims in the same court) and applying rule retroactively does not burden the court because of statutes of limitation
  • court grants wife ability to sue for husband

Blackstonian Doctrine/Graves case

act of overruling a prior rule or an erroneous law and concluding that it was never a law at all


Harris v. Sherman 1998 (Supreme Court of Vermont)

  • Wife wants to bring loss of consortium
  • was not his wife (engaged) when injury happened
  • court ruled that you MUST be married to bring loss of consortium claim
  • This case points out a "bright line rule" of who is considered married


all statutes will be applied prospectively

  • the "sun" brings a NEW day SO all statutes bust be applied to NEW cases

Higgins v. Butcher

Common law did not allow for a civil recovery for an act that constituted, BOTH, a tort and a felony

  • Husband couldn't sue for loss of consortium of his wife because she died
  • Butcher was sued for murder of his wife


Laws enacted formally by legislatures

  • Takes the place of the common law

Stare Decisis

To stand by the precedents and not to disturb settled points

  • attitude
  • Binding to the extent that lower court must follow the applicable precedent of a court with supervisory jurisdiction over it.
  • Keeps judges from making rediculous rulings

Winterbottom v. Wright

  • A had contract with B --> B had contract with C --> B had contract with both
  • A sued C
  • C was not held liable because no privity of contract
  • No privity = No liabiltiy

Thomas v. Winchester

  • Strict Product Liability
  • Wife injected something she believed was medicine but it was actually poison
  • Defendant's employee mislabeled bottle
  • If wrongdoer puts life in imminent danger, then he is held liable even without privity of contract

Statler v. George

  • Strict Product Liability
  • Coffee iron incident
  • Manufacturer created dangerous product without testing or inspecting it
  • Defendant held liable to consumers that are hurt

McPherson v. Buick Motor Co.

  • Strict Products LIability Case
  • Wheel fell off a car (defect)
  • Two-Part Test Element arises from this case
  • Defendant did not do proper test and liable for the incident
  • Holding: The last person to produce product should have inspected it

Devlin v. Smith

  • Plaintiff on scaffold painting
  • Defendant made it with nail instead of rope
  • Wife sued for loss of consortium
  • Rule: No privity = No liability; but
  • Exception: The defect renders the product dangerous
  • Holding: Defendant liable for negligent construction because it became imminently dangerous to human life