1. SOME BASIC STUFF ABOUT YOUR LEGAL SYSTEM YOU PROBABLY NEED TO KNOW. CRIMINAL VS. CIVIL LAW TORTS PROPERTY Intro to American Law - 101

2. Terminology Some terms you need to know:  Plaintiff - The party that institutes a suit in a court.  Defendant - The party against which an action is brought.  Prosecution - an officer or officers in a judicial district appointed to conduct criminal prosecutions on behalf of the state and people  Guilty - Found to have violated a criminal law by a jury or judge.  Liable - Legally obligated; responsible.  Intent - The state of one's mind at the time one carries out an action.  Tortfeasor – A person liable for a tort.  Negligence - Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party.

3. Criminal Law v. Civil Law Criminal LawCivil Law - Plaintiff is the state (e.g.,- Plaintiff is private party State v. Doe) (e.g., Doe v. Roe) - Guilty or Not Guilty- Liable or Not Liable - Guilty verdict results in- Liability results in prison sentence/fines) paying damages (i.e., money) - Prosecution must prove- Plaintiff only needs a guilt beyond a reasonable preponderance of doubt evidence (50% +.0001)

4. Definition of a Tort Black’s Law Dictionary defines a tort as 1. A civil wrong for which a remedy may be obtained, usually in the form of damages… 2. (pl.) The branch of law dealing with such wrongs. A far less formal definition of a tort is 1. All the crazy stuff that you can possibly imagine happening to a person done by somebody else (either directly on indirectly).

5. Torts: Fact or Fiction? Raise your hand if you think the following actually happened: 1. A woman sued a doctor for malpractice because he invited his friend to watch him deliver her baby. 2. A woman sued a railroad company because scales fell on her on a railroad platform. A railroad worker had helped a young man, who happened to be carrying a bundle of fireworks, jump onto a moving train. While jumping on the train the young man dropped his package, which caused the explosion that caused the scales to fall. 3. A woman sued a cab company when a cab without a driver hit her. The driver had jumped from the moving cab to escape a robber who had pointed a gun to the driver’s head. 4. A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off.

6. Types of Torts There are a variety of torts, which can broadly be broken into the following three categories: - Negligent torts Negligent torts, as their name suggests, are torts that are caused by the negligence of the tortfeasor, or person who commits the tort. - Intentional torts Intentional torts, also as their name suggests, are torts caused intentionally by the tortfeasor. Strict liability torts Strict liability torts are torts where the law has determined that some activities are so dangerous that an individual engaging in those activities is liable for damages regardless of intent or negligence resulting in harm. A common example is blasting with dynamite.

7. Negligent Torts: Elements There are four basic elements of a tort: 1) Duty - Demonstrating that the defendant had a duty to observe or protect the safety of the plaintiff 2) Breach - The defendant breached that duty and endangered the health and safety of the plaintiff 3) Damages - The plaintiff suffered injury in some form 4) Causation - The plaintiff’s injuries were caused by the negligence of the defendant.  There are two types of causation: Causation in fact (but for); and Proximate cause (sufficient relation)

8. Negligent Torts: Causation Causation in fact, also known as “but-for” causation, is pretty simple. The question is, but for the defendant’s actions would the injury have occurred? Example: A hits B in the shin with a golf club. B’s shin would not have been injured if A had not him in the shin with a golf club.

9. Proximate Cause Proximate cause is a little more difficult. Ultimately, it is more of a policy question than a legal question. The issue is where the law wants to cut off liability for a negligent actor. Several theories exist regarding proximate cause: 1) Forseeability 2) Direct Causation 3) The “Danger Zone”

10. Due Care and a Reasonable Person Everyone has a duty to exercise due care all of the time. What is due care? Due care is the amount of care that a reasonable person would exercise under the circumstances. What is a reasonable person? A reasonable person is not any real person or even the average person, but an imaginary prudent person who takes the precautions necessary to avoid harming another person or their property.

11. Damages The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount. The real difficulty comes in calculating damages. For example, it is pretty easy to figure out how much a totaled car is worth, but it’s not so easy to figure out how much eyesight is worth.

12. Negligent Torts: Defenses Even where the plaintiff has proven all of the elements of a negligent tort, the defendant may be found not to be liable or the defendant’s liability may be reduced based on certain defenses. These defenses include: 1) Contributory Negligence - a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages. 2) Comparative Negligence - a rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident. 3) Consent - Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. 4) Illegality – Preventing the damages would have forced the defendant to do something that is illegal.

13. Property Law John Locke’s three principles:  Life  Liberty  Property Clearly, the concept of ownership is important to modern western society. Remember feudalism; the concept of ownership is foreign. Even today in Communist countries, the government owns everything. You are just borrowing it.

14. What is “Property”? Numerous ways to classify animate and inanimate objects - “things” Something is “property” if it has value to someone after costs are considered Characteristics of a given “thing” affect how rights are “structured” Real property Personal property

15. Ownership defined Ownership indicates the relationship between a person and a corporeal or incorporeal legal object. It confers a bundle of rights to enjoy, use possess, dispose of and alienate a "thing" as well as the capacity to ward of any encroachment on the thing. Ownership can be limited by other rights but is not dependent on other rights.

16. Efficiency of Ownership Efficiency achieved when property rights are characterized by,  Universality  All resources privately owned  All rights completely specified  Exclusivity  Owner receives all benefits and incurs all costs  Enforceability  All rights secure from involuntary seizure or encroachment  Transferability  All rights transferable from one owner to another in voluntary exchanges

17. What is a “right” in Property? Relationships among “people” having an interest in a “thing”  People - natural and corporate  Relationships - legal, commercial, social, family, personal Exist only to extent  Recognized,  Enforced,  Rationale - value of right exceeds cost of enforcement

18. Use and manage - control of property Income - right to receive it Capital - use for production of income Possession - physically occupy Security - borrow against it Absence of term - rights don’t terminate Prohibition of harmful use - can’t create hazards or nuisances Residuary character - owner has all rights not specifically excluded Incidents (Rights) of Ownership

19. Why Not Share? Madison: People are generally ignorant Smith: People act in their own self interest In economics, the tragedy of the commons is the depletion of a shared resource by individuals, acting independently and rationally according to each one's self-interest, despite their understanding that depleting the common resource is contrary to the group's long-term best interests.

20. What are the characteristics of "property"? Possession  Physical control - corporeality - what about all the incorporeal forms of rights which are also property? Exclusion  The right to stop others from enjoyment of the thing Enjoyment and use  Property rights are also use rights - but there may also be rights to enjoy which are not "property"  Some rights of enjoyment can be transferred into property - fishing and hunting rights (eg when the animals and fish are killed or captured they become property)

21. Possession defined Two elements are necessary – (1) control (corpus possessonis) – some exercise of power over the goods or land (2) intention (animus possidendi) – an attitude in the mind of the actor denying the rights of other to have access to the land or goods

22. Possession – Labor Theory Locke argued in support of individual property rights as "natural rights". Following the argument the fruits of one's labor are one's own because one worked for it. Furthermore the laborer must also hold a natural property right in the resource itself because - as Locke believes - exclusive ownership was immediately necessary for production.

23. Scenario 1 Car accident  You are thrown from the vehicle  Your right arm is severed  You stem the bleeding  A man walks past picks up the blood and walks off  Can you get the arm back?

24. Scenario 2 You are dying of lung disease  You are a racist  Your other organs are fine and you wish to donate your kidneys :  one to your daughter who has polycystic kidney disease; and  the other to “any white child”

25. Scenario 3 You and your partner had a young child of 12 weeks who died from a rare disorder  After a postmortem examination the body is returned to you and you bury your child  5 years later you go to an exhibition of anatomy specimens and you see a child’s heart and lungs on display with your child’s disease. Later inquiries confirm that it is your child’s organs.  What can you do?

26. Answers With property rights you can get the arm back, without them you can’t With property rights the directed donation is legal as is the racist condition, without property rights the kidneys cannot be taken With property rights you can sue for the return of the preserved organs and the emotional damages, without them you have no claim