Philosophy Of Law: Midterm 1

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Philosophy Of Law: Midterm 1

First Midterm For Philosophy Of Law. Probably The Worst Course I've Taken. 

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Meaning: Ratio Decedendi
The part of a decision that is binding.The part that is binding is the reason for the decision. 
Meaning: Obiter Dicta
Everything in a decision that is not binding. Things said "by the way."
Difference between "a law" and "the law."
A law is one rule.The law is the entire body of state-enforced or legal rules.
Common Law
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. 
Meaning: Stare Decisis
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.
Difference between statute law and common law.
Statute law is enforced by the government. Statute law and common law are interpreted and applied by the courts. 
Majority Decision
The decision of the court that determines the outcome of the case. 
Concurring Opinion
Judges concur, or agree, with the result. But, they may add their own reasoning as to how they came to the same conclusion. 
Dissenting Opinion
Disagrees with both the reasons and outcome of the majority decision. The dissent does not determine the outcome. 
Tort Law
The private law of actionable wrongs.
Tort law requires fault in order to impose liability
"Actionable" definition
Recognized at law as something you can sue for. 
Difference in standard of proof at civil law and criminal law.
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%). 
"Per se" meaning
In itself, or intrinsically
Intentional Torts
Are "actionable per se."Examples: Trespass, slander, assault, battery, unlawful confinement, conversion, etc. Purposeful intentional act; inherently wrong (whether anyone is harmed or not).
Unintentional Torts
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. 
Elements of Negligence 
1. Duty of Care2. Standard of Care3. Breach of Standard of Care4. Causation5. Damages
Meaning: Loss Spreading 
U.S. ModelSociety can bare the cost of a certain injury
Meaning: Loss Fixing
Canadian ModelMeaning "finding where the fault lies."- Identify or locate liability; it sticks to principle
Pecuniary Loss
Monetary Lossie. What are the value of my lost wages?
Non-pecuniary Loss
Non-monetary LossIncludes pain and suffering
Factors of "standard of care"
- 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
Rescue Principles (4)
- 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). 
Meaning: Nunc pro tunc
"Let's just presume it was properly filed." 
Meaning: A priori
Derived prior to experience- The law is not a set of a priori principles. 
Insurance Argument 
Plaintiff is in best position to know how much money they're going to lose; they know how to assess the risk
Loss Spreading Argument
The loss should be spread out amongst everyone.
Contractual Allocation of Risk
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. 
Collateral Benefits
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. 
Non-pecuniary loss: Conceptual Approach
Treats each faculty as a proprietary asset with an objective value. Bot or tariff system ($12,000 for little finger).
Non-pecuniary loss: Personal Approach
Values the injury in terms of the loss of human happiness by each particular victim.
Non-pecuniary loss: Functional Approach
Accepts the personal premise of the personal approach, plus attempts to compensate to provide "reasonable solace for misfortune." 
When is economic loss recoverable:
- if there is knowledge of the person likely to suffer.- If there is foreseeability of nature of loss. - If there is sufficient proximity. 
- 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
2 factors determining gravity/magnitude of risk:
Seriousness of injury. Likelihood of injury.