Elements Exam Outline fall 07

Elements Exam Outline fall 07 - Elements Outline Kelly v...

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Elements Outline Kelly v. Gwinnell In Kelly v. Gwinnell , the court tried very hard to limit what rule they established i.e. they attempted to restrict how assimiable the categories are by saying “We only hold that…” This illustrates an attempt to restrict/predict how their decision will affect the future. Ex. of forward-looking aspect. Kelly v. Gwinnell, court said “we only hold in this case” . .. “we will rule on the other issues when they are before us”… We must try to separate what the court did in a past decision from what the court said (the language addresses the future) . The court does not find the law, they make it. In Kelly v. Gwinnell, the court concentrated on statistics regarding the impact of drunken driving in NJ/nationally, facts are essential to the outcome of the case. The principle of stare decisis forces us to rely on the court’s past holdings, but leaves us with the duty to figure out what they actually held. In a sense, a precedent system with stare decisis is useless because no case will ever truly be factually the same. When attempting to apply a past case to a present, it is essential to generalize the facts or eliminate inconvenient facts. You never know the court really held in a case until it is applied to another case. - Do not look for the true rule, for it does not exist. There are no sure bets in law - When courts act, they act normatively - However, the verdict of a jury does not set a precedent; it is good for that case and that case only. - In Kelly, the holding was in fact a precedent because the issue decided upon was a question of law. - Precedent can only be something that involves a question of law. - The facts of different cases are similar when the courts decide and say so. - In our system, when the courts make decisions, part of there decision is based on how they think the decision will affect tomorrow. - Why use precedent? To help illustrate there was a moving trend towards that law. It helps support their decision, it should come as no surprise they arrived at such a law. There isn’t a clear answer as to whether a judge’s decision was appropriate or not. Not all decisions reach higher courts, and if a lower court decides to take a significant step, the higher courts always have the opportunity to reverse the decision if they deem it inappropriate Restatement § 1339 The Restatement holds a landowner liable to trespassing children if 4 criteria are met: 1. Landowner knows or should know that children are likely to trespass 2. The condition poses an unreasonable risk of death or serious bodily harm to kids 3. The children, b/c of their age, do not realize the risk and danger 4. The utility to the possessor is slight compared to the risk to the children 1
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Barrett v. Southern Pacific Co. 1891 ( Turntable/Liable) Maj. Opinion: Justice De Haven Concurring Justices: Beatty, C.J.; McFarland Facts: - 8 yr. old trespassing boy (P) injured on R.R. turntable. -
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This note was uploaded on 04/09/2008 for the course LAW Elements o taught by Professor Hanks during the Fall '08 term at Yeshiva.

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Elements Exam Outline fall 07 - Elements Outline Kelly v...

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