Meaning: Ratio Decedendi |
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The part of a decision that is binding.The part that is binding is the reason for the decision.
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Meaning: Obiter Dicta |
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Everything in a decision that is not binding. Things said "by the way." |
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Difference between "a law" and "the law." |
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A law is one rule.The law is the entire body of state-enforced or legal rules. |
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Common Law |
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Often described as judge-made law, because it is a set of principles that judges, over time, have been developed collectively, when they have decided particular cases. |
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Meaning: Stare Decisis |
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Latin term meaning the decision stands. The system developed from common law and case precedent. The rule of law from a similar case is binding on the later judge. |
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Difference between statute law and common law. |
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Statute law is enforced by the government. Statute law and common law are interpreted and applied by the courts. |
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Majority Decision |
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The decision of the court that determines the outcome of the case. |
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Concurring Opinion |
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Judges concur, or agree, with the result. But, they may add their own reasoning as to how they came to the same conclusion. |
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Dissenting Opinion |
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Disagrees with both the reasons and outcome of the majority decision. The dissent does not determine the outcome. |
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Tort Law |
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The private law of actionable wrongs. Tort law requires fault in order to impose liability |
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"Actionable" definition |
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Recognized at law as something you can sue for. |
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Difference in standard of proof at civil law and criminal law. |
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Criminal case: standard of proof has to prove its case beyond a reasonable doubt. Civil case: Plaintiff only has to prove its case on the standard called the balance of probabilities (51%). |
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"Per se" meaning |
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In itself, or intrinsically |
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Intentional Torts |
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Are "actionable per se."Examples: Trespass, slander, assault, battery, unlawful confinement, conversion, etc. Purposeful intentional act; inherently wrong (whether anyone is harmed or not). |
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Unintentional Torts |
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The fault or wrongfulness of conduct is based not on what defender knew, but what he ought to have known. Not actionable per so, harm/injury is a necessary element. |
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Elements of Negligence |
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1. Duty of Care2. Standard of Care3. Breach of Standard of Care4. Causation5. Damages |
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Meaning: Loss Spreading |
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U.S. ModelSociety can bare the cost of a certain injury |
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Meaning: Loss Fixing |
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Canadian ModelMeaning "finding where the fault lies."- Identify or locate liability; it sticks to principle |
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Pecuniary Loss |
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Monetary Lossie. What are the value of my lost wages? |
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Non-pecuniary Loss |
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Non-monetary LossIncludes pain and suffering |
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Factors of "standard of care" |
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- How likely it is that someone will be injured- The severity of the injury- The social utility; how important is it- The cost of avoidance |
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Rescue Principles (4) |
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- No duty to rescue (unless currently working a position it is your duty). - If started rescue, you don't have to complete (unless leaving would worsen their situation)- Rescue attempt and rescuer is negligent and makes things worse = possible liability.- Duty to would-be rescuer (they come to save you, get injured, and you could be liable). |
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Meaning: Nunc pro tunc |
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"Let's just presume it was properly filed." |
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Meaning: A priori |
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Derived prior to experience- The law is not a set of a priori principles. |
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Insurance Argument |
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Plaintiff is in best position to know how much money they're going to lose; they know how to assess the risk |
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Loss Spreading Argument |
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The loss should be spread out amongst everyone. |
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Contractual Allocation of Risk |
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Focuses on the ability of person who stand to suffer economic loss due to damage to the property of another, to allocate the risk within their contracts effectively. |
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Collateral Benefits |
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Judge does not care where money comes from (insurance, charity welfare), it ought not to reduce the liability of the defendant. - Collateral benefits are not to be used to assist the defendant in reducing the damages claim. |
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Non-pecuniary loss: Conceptual Approach |
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Treats each faculty as a proprietary asset with an objective value. Bot or tariff system ($12,000 for little finger). |
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Non-pecuniary loss: Personal Approach |
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Values the injury in terms of the loss of human happiness by each particular victim. |
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Non-pecuniary loss: Functional Approach |
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Accepts the personal premise of the personal approach, plus attempts to compensate to provide "reasonable solace for misfortune." |
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When is economic loss recoverable: |
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- if there is knowledge of the person likely to suffer.- If there is foreseeability of nature of loss. - If there is sufficient proximity. |
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Proximity |
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- Connection between defendant's conduct and plaintiff's loss. - Controls unlimited liability- Various forms of closeness- Includes a duty to warn- Does not indicate liability |
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2 factors determining gravity/magnitude of risk: |
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Seriousness of injury. Likelihood of injury. |
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