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What is law?

Law is not in law books.While books tell us a lot about the law, they are not the law. Instead, law lives in conduct, not on the printed page; it exists in the interactions of judges, lawyers, and ordinary citizens.To understand the law, then, we have to examine events as they occur in the world. We can generalize from those events and create theories and concepts to inform our understanding of the law, but the touchstone is always the world and not the idea. One way this is done in law school is to focus on individual fact situations that give rise to litigation and on the judicial opinions that resolve the situations, known as cases.

Law is not secret.Law reflects life. The principles and issues embodied in the law are not different from those that we experience in other aspects of our lives.

There are no simple answers. Law reflects life, and life is complicated. Therefore, legal problems defy simple solutions.

There are no simple answers. Life is complicated in two ways. First, things are often messy, so it is hard to define a legal issue and construct an appropriate solution. Second, life is complicated because we often are of two minds about an issue. We would like to have clear legal rules to ensure consistency, fairness, and predictability. But we want to make room for the equities of individual cases in which the application of a rule would produce an unfair result, in order to relieve a particular party of the hardship of the rule.

People make the law. Often, the law appears to be part of the natural order of things. The law and legal decisions can be seen as inevitable, based on immutable principles of justice, hardly the product of human action at all.

Constitution law: Freedom of speech

Why we protect free speech?

The freedom of speech permits a marketplace of ideas in which different versions of truth and good contend for the greater number of supporters. Because the only test of an opinion is its acceptance by the public, we cannot know in advance which opinions are the best; therefore, the government must allow all of them to complete freely. Finally, the ultimate good desired is better reached by free trade in ideas.

Most people agree that some speech should receive full constitutional protection and some should not. The problem is figuring out where to draw the lines.

From the marketplace of ideas perspective, speech or communicative conduct has value primarily because it is part of a public debate. Speech that does not contribute to public debate does not deserve the same level of protection as speech that does contribute. Advocates of regulation argue that, for example, obscene pictures do not add anything to public discourse. Other kinds of speech simply cause harm without contributing to debate, or the harm they cause vastly outweighs any contribution they make.

Tort law

is it a tort when you injure someone by not being careful?

This area of tort law is called negligence. The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause to other people.

What does the court mean by ‘foreseeable’? Courts has to draw a line at some point, holding that a negligent defendant is not liable for consequences that are too remote.(palsgraf v. Long Island railroad co.: negligence always implies a duty to foreseeable person for foreseeable harm, and palsgraf was too unfortunately remote a victim to recover in this case.)

What does the court mean by reasonable care?

The hand formula. [Probability*Loss ? Burden ]

The reasonable person. To exercise reasonable care, all you have to do is act the way a reasonable person would act in the circumstances.The reasonable person is not any particular person or an average person. Instead, the reasonable person is the personification of the Hand formula, a hypothetical and superior individual who acts the way everyone should act all of the time. As one court put it, “This excellent but odious character stands like a monument in our Courts of Justice, vainly appealing to his fellow citizens to order their lives after his own example.’’

strict liability

Strict liability encourage a heightened degree of care and imposes on the actor the duty to pay all the costs associated with the activity. It is imposed especially for activities that are not only dangerous but unusual for their locale.

product liability

Manufacturing defect: the product is not made the way it supposed to be

Design defect:

[consumer expectation test]: a product is defectively designed if it is more dangerous than users of the product ordinarily expect it to be.

[risk-utility test] a product is defectively designed if the dangers created by its design outweigh the benefits of the design.

Courts that were protective of consumers found that the consumer expectations test by itself is not enough to evaluate defective designs, while advocates of a negligence standard argued that in many cases, particularly involving complex products, consumers had no fixed expectations of safety. Therefore, the risk-utility test developed as an additional or alternative standard.Depending on how broadly or narrowly it is applied, the risk-utility test can tend toward negligence or strict liability. Courts that favor negligence require the victim to prove that there was a reasonable alternative design of the product that would have prevented the accident. Courts that favor strict liability apply a more expansive test. For example, some apply the test looking backward from the time of the injury, assessing the risks and benefits of the product as things turned out after the accident has taken place, whether or not the risks were foreseeable to the manufacturer in advance; others consider the manufacturer’s ability to spread the loss as a part of the cost-benefit calculation; and some shift the burden to the defendant of proving that the product was reasonably safe, once the victim has shown that a defect in the product caused harm.

Failures to warn that render the product unreasonably dangerous

punitive damages

The test are stated in terms such as whether the defendant’s conduct ‘shock the conscience’ or demonstrate a ‘reckless indifference’ or ‘willful and wanton disregard’ for the safety of the plaintiff.

Contract law

Why do we need contract law?

From lawyers’ prospective, contract is the mechanism by which the society works and contract law is the lubricant that makes the mechanism works better. Contracts define what we mean by a society based on the market and individual choice. Contract law has two special functions in making this kind of society possible. It provides a dispute resolution mechanism for exchanges, and it demonstrates society’s commitment to freedom and autonomy.

If the performance of both parties to an agreement could occur at the moment the contract is made, contract law would be unnecessary. Immediate, simultaneous performance is seldom the case, however. An agreement to buy a house must be made weeks or months before the deal closes to allow time for the buyer to obtain a mortgage and for the seller to prepare to move. Therefore, contract law provides security for exchanges that are projected into the future. Between the time of agreement and the time for final performance, many things can happen that may upset the relationship. One party may get a better offer or just have a change of heart and refuse to go through with the deal. The buyer may find a better house or be unable to get a mortgage. By providing an enforcement mechanism for agreements that are to be performed in the future, contract law assures contracting parties that they can make plans or investments in reliance on the promises others has made to them.The contract process provides more than products. People can fulfill their desires and achieve what they want in life through the agreements they make.

But lawyers are inclined to overstate their importance. Most agreements are negotiated and performed with no trouble. Law students are trained to look on every deal as a potential disaster, so lawyers often lose sight of how well things usually work. Even when trouble does occur in a contract, contract law is a remedy of last resort. After all, people enter into contracts to get things done, not to establish their legal rights in case of breach. If problems do arise, persuading the other party, appealing to reasonable standard of behavior, or threatening economic sanctions are remedies much preferred to calling in lawyers and engaging in expensive litigation.

The second and more general function of contract law is to honor individual freedom and autonomy. Contract law demonstrates the law’s respect for these values by enforcing the agreements people make and by imposing obligations on people only when and to the extent that they consent to assume those obligations. This is what we mean by freedom of contract.

What is a contract?

A promise is a commitment to do or not do something in the future. When you promise to do something, you are saying that you really will do it, not that you will do it if you feel like it when the time comes, or you will do it unless you change your mind.

An agreement is an exchange of promises. It is the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance. the language of the parties is only the starting point.Their agreement also includes terms “by implication from other circumstances,” such as how the parties have dealt with each other in the past under prior agreements (course of dealing), how other people like them usually act (usage of trade), and how they have acted in performing their current agreement (course of performance ). Sometimes we are tempted to focus narrowly on the words the parties have used and to treat their agreement as an isolated event, unique, independent, and separated from its context. The expansive conception of agreement leads us toward a relational view of contracting, through which we recognize that no contract is ever truly discrete and contracts with extensive pasts and futures are the norm in our society.

A contract is a legally enforceable agreement. The law does two things in transforming an agreement into an enforceable contract. First, it determines whether the contract meets all the requirements of the law. Second, the law defines and supplements the sources of agreement.

How do you make a contract?

[Embry v. Hargadine, McKittrick Dry Goods Co. (1907).]: was there a contract in this case? The test for contract formation is not whether someone actually intends to make a promise but whether the words and conduct as reasonably understood by the person to whom they were directed was sufficient to imply a promise.

[Williams v. Walker-Thomas Furniture Co. (1965)]:When a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.

Will the court order someone to perform a contract?

The principle that money damages are an adequate substitute for performance rests on a particular view of the role of contract law in society. Contract law is solely about economic relations with no moral content to it. The only consequence of failing to keep a promise is that the breaching party must pay the other party’s loss. No moral condemnation attaches to the breach, so the law does not order the breaching party to perform or punish him for breaching. In modern times, this has been developed into a surprising economic principle known as efficient breach. If a party breaches because he can get a better deal elsewhere, that is not only not a bad thing but it is praiseworthy. As long as the breaching party pays damages, economic efficiency is served and everybody is better off; the injured party has the equivalent of what was promised and the breaching party has his better deal.

How much does someone has to pay for not keeping promise?

Contracts are enforceable because people expect that someone who makes a promise will carry through on it. When the promise is broken, the injured party’s expectation is the usual measure of contract damages.

Contract law imposes some limitations on expectation damages: damages must be foreseeable; the non-breaching party cannot recover damages that it could have avoided through reasonable efforts; damages must be proved with reasonable certainty/ expense incurred in reliance on a contract

recall that contract remedies, like the liability rules of contract law, are residual. The threat of legal remedies is not as important in deterring people from breaking their promises as is other factors. People will avoid breaking their promises because they think that it is wrong to do so. Other people may think badly of them if they do, and reputation is a valuable commodity in business. Their contracting partner may refuse to deal with them in the future if they breach. So contract remedies, like the rest of contract law, are only part of the story.

只挑了中国法教材里没有又很惊艳的部分。