Philosophy 2080 - Philosophy of Law - All of the lecture notes in one big document.docx

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Department
Management and Organizational Studies
Course
Management and Organizational Studies 1021A/B
Professor
James Hildebrand
Semester
Fall

Description
Philosophy 2080Philosophy of Law TORT LAW BEGINS 14 September 2011 Watch out for legal jargon Look it up or something Read Weinribs essay first which is in the professors notes Pointers about Donough vs Stevenson In Scotland the Lord Ordinary is the judge the averments means what they said in the statement of claims so their allegation The summonses are the statement of claims She didnt have to take the stand and give any evidence in the trail Theyre not going to dispute those facts Theyll accept them as they are and argue about the law The head note The reporting service describes what happens in a paragraph or two before he quotes what the court is saying21 September 2011 Next Week Palsgraph v Long Island to Amos v NB ie all cases under Duty of Care Law A body of rules that a community recognizes as regulating the actions of its members and may enforce by the imposition of penalties The Rule of Law A Statute of LawCommon Law Judge made law Q Should we participate in the decisions that judges make OPINION Judges arent supposed to be oriented towards Social Policy People are uncomfortable with the idea of a Judge being able to tell the government what to do Retirement is 75 Judicial Activists The judiciary cant be influenced or told what to do Judges must be object and impartial resolve disputes before themLegislation affects everyone1066 AngloSaxon law adopted for Englands entire realm The Kings law and the King would send Justices to decide cases which would travel and make decisions based on the Kings law The Judges shared how they resolved disputes and kept them in writing begun in 1277 in a central location so that they were all able to take a look at each others decisions Over the next 7 centuries a body of case law is developeda system of case law Stare DecisisLatin for decision stands Meaning that if the court encounters a case that is quite similar to one that has already been decided on in the past the court is bound to make the same decision again Therefore decisions remain consistent and fair This is called Binding the case is bound to the same decision Ratio Decendendireason for the decision the reason that the case is binding Note The whole case doesnt have to be binding it can just be part of it Obiter dictathings said by the way the reason that the case is NOT binding or important Courts Courts have a hierarchal structurePlaintiff a person who brings a case against another in a court of lawJudge is also called The Tryer of FactJury decides the decision judge decides on the law Appeal court does not have any witnesses because appeals are purely done by paper Appeals can only be done when there is a question of Law If a court makes a decision than all the courts below it are bound to the decisiono Ex The Provincial Court of Ontario The Supreme Court of Canada etc o House of Lords Colonies Descanting opinion and major opinion Sort of like a debate Concurring decision Judges agree on a certain result but for different reasons If a judge has a decision overturned this doesnt necessarily affect their job prospectsTort Law The law of actionable wrongs by saying actionable we mean private So private parties that have a relationship with each other you plead with the court and you pray for relief The parties themselves are in the drivers seat in public law ex Criminal Law that is not the case it is the CrownPeople who are the leaders in the case Private law is the body of law that deals typically with the resolving of disputes between private individuals In Canada a private law suit means the person injured must put the case forward or bring the action The parties to the dispute the litigants fund a private action A person in a private law suit or action must have a personal stake in the suit in order to be involved You cant sue your neighbors contractor for injury to your neighbor that is your neighbors private action to bring In Tort Law assault is a threat of violence You cant be convicted in a private lawsuit youre found liable Public law is the body of law where we say the state has an interest Criminal law is a good example of public law A crime is an act that is considered to be an offence against the state as well as the particular victim Even if the victim does not want to pursue the case the state will intervene and prosecute the accused person We often hear people saying they do not want to press charges But in Canada this is not the victims decision this is the decision of the representative of the state usually a crown attorney It may be that a crown attorney decides not to prosecute a case because of a reluctant principle witness but the decision to prosecute is solely the decision of the states representative The criminal case is not a case between victim and criminal The victim is a key witness but the victim does not pursue the person accused of a crime The state prosecutes and the state pays for the investigation and prosecutionThis distinction between public and private is important to understanding what tort law is If tort law is the law of privately actionable wrongs we can contrast this with criminal law quite easily There can be concurrent liability in both Tort and Criminal law Just because a person has been charged criminally doesnt mean they cant also be sued civilly And just because a person has been sued doesnt mean he or she cant be charged criminally The public and the private are separate but relatedCASE OJ Simpson He was acquitted of murder due to a reasonable doubt In order to acquit you dont have to show beyond a reasonable doubtOJ Simpson famous football and movie star was charged with the murder of two people Nicole Brown Simpson and Ronald Goldman OJ was acquitted at trial some say found not guilty although I prefer to call it not found guilty Following his acquittal he was sued civilly for causing the wrongful death of the same persons he was alleged to have murdered Two years after his acquittal of on the murder charges OJ Simpson was found civilly liable for wrongfully causing the deaths of Nicole Brown Simpson and Ron Goldman Some people wondered how he could be found not guilty and then two years later ostensibly found guilty of the same crime To say this a bit more accurately one court process apparently said he didnt do it the other said he did Remember in a criminal case the state has the onus of proof The standard of proof imposed on the state in order to convict the accused is that it has to prove its case beyond a reasonable doubtIn the OJ Simpson murder trial the state failed to prove its case beyond a reasonable doubt In other words nothing was proven So OJ was not found guilty He was also not found innocent In a civil case in this case an intentional tort case the plaintiff thats the person doing the suing has the onus of proof but need only prove its case on the standard called the balance of probabilities So technically speaking if it is 51 more likely OJ caused the death of Ms Brown Simpson and Mr Goldman the plaintiff will win the case Most people thought he did it but there was always that doubt No criminal conviction If the evidence showed he probably did it a civil action for wrongful death could find him liable From this example we see the difference in standard of proof between civil and criminal cases and we see that the same set of circumstances can generate both a civil and a criminal liability Not the other wayIf OJ had been convicted in a criminal proceeding and the relatives of his victims had sued for wrongful death OJ would not have been able to defend the civil action by claiming he did not commit the act of killing the victims This is because in the criminal trial the case was proved beyond a reasonable doubt that he committed the act that both constitutes the crime and also constitutes the tort of wrongful death The rule goes like this you cannot challenge the conviction or the findings of fact that support the conviction resulting from a criminal case in a collateral proceeding I heartily recommend suing the guy who punches you in the parking lot especially if he is criminally convicted of doing so Just file the certificate of conviction and prove your damages This is rarely done because drunken sots who punch you rarely have enough money to pay the damages but I say hit him back where it hurts right in the wallet Intentional and Unintentional Torts Tort law provides compensation to the plaintiff at the cost of the defendant In order to find liability there has to be some wrongdoing We know that tripping and knocking something over perhaps even breaking something is not necessarily a wrong It could be an accident in the true sense of the word Tort law only finds liability where there is fault and fault means wrong or blameworthy conduct In a similar fashion to criminal law in order to find conduct as blameworthy in law there must be an intention to do the thing that is wrong Intentional tortsThis is where tort law started but we dont focus on intentional torts in this course so I will explain what they are and by contrast we will better understand the unintentional tortCertain intentional acts will attract tort liability Some examples of intentional tortsTrespass intentionally entering on the lands of another without permissionLibel or Slander saying something to someone other than the plaintiff that if believed would harm the plaintiffs reputationUnlawful Confinement confining someone without lawful excuse or justificationAssault the threat of violence This is different than criminal assault which is actually the same as battery in tort lawBattery the intentional application of force on the person of another without their consent The criminal law calls this conduct assaultConversion intentional taking of the property of another without their consent this act is called theft in criminal lawThese definitions are very brief but hopefully you get the point We can see each one is something socially and legally we perceive as a wrong You will also notice each one requires a purposeful intentional act by the wrongdoer or defendantActionable per se The rule Intentional torts are actionable per se o Actionable conduct recognized by law as something that you can sue for o Per se in itself or intrinsically In tort law this has come to mean that a plaintiff does not have to show actual harm or injury in order to succeed in his or her law suit action o For example a person could slander another person and even though no one believed the nasty comments the plaintiff would still be able to win the case o If actual harm did occur this would form part of the case but harm is not required to establish an intentional tort o To win the case you dont have to prove that anybody believed it Ex I say I will smack you Someone can sue me even if nobody believed itThe law recognizes the conduct of intentional torts as inherently wrong whether anyone is harmed or not Unintentional TortsTort Law requires fault in order to impose liabilityIf you borrowed your neighbors lawnmower and something happened to it while it was in your possession and it was broken and you did nothing wrong then the law does not
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