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American Law (Fach) / Exam Review (Lektion)

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• boilerplate the standard language found in all contracts clarifies what general law will govern the contract
• operative language new language that dictates the relation between the parties in this specific contractual relationship
• severability clause allows the void clause(s) to be cut out of the contract with the rest of the contract remaining valid
• merger clause makes clear to the reader that this contract represents the agreement between the parties
• force majeure clause also known as the "Act of God" clause: protects both parties from being found in breach of contract due to factors beyond the parties' personal control (war, riots, explosion, inability to obtain fuel, labor, etc.)
• modification and waiver clause ensures that all modifications to the contract are in writing and signed by both parties
• assignment and delegation prohibits a party from assigning their responsibilities under a contract to a 3rd party
• choice of law in international contracts it is extremely important to determine whose legal system is going to govern the contract
• choice of forum Dictates what court will hear the case, i.e., it determines the jurisdiction
• law school 3-year program, J.D. is received upon graduation. To become a practicing lawyer, you have to pass the bar: each state has a separate exam once your pass the bar you can only practice law in that state
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• CLE Continuing legal education: helps lawyers stay current and expand their legal expertise
• Bar 1878 - American Bar Association (ABA) established  Each state has its own bar association, as do large cities and many counties Has grievance committees to investigate complaints and can suspend members from practice or fine them Establishes rules of professional conduct
• advertising Legal since 1977 with the Supreme Court decision in Bates v State Bar of Arizona (1977), but bar association can regulate and lay down guidelines for lawyer advertising 
• pro bono representing someone without charge
• contingency fee no payment to lawyer unless he or she wins the case
• fixed fee hourly charge that must be fair and reasonable
• precedent prior cases which are close in facts or legal principles to the case under consideration
• stare decisis let the decision stand --> central legal concept of the common law system: once a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases, where facts are substantially the same
• Native Americans in the US Arrived in North America 16,000 - 18,000 years ago, down to 200,000 in late 19C, down from 10 million at the time of European arrival, now 2.5M American Indians, mostly fought with the British during the revolutionary war, Cherokee Nation v Georgia (supreme court) --> Cherokee represents a "domestic dependent nation" --> the state of Georgia has no jurisdiction, Worcester v Georgia: Cherokee are entitled to federal protection from the actions of state governments --> Georgia simply ignored the ruling and President Jackson did not enforce the Supreme Court ruling --> removed to Oklahoma on "Trail of Tears," 1870 - 1890 Native Americans are removed to reservations, Native American jurisdiction: tribal counsel, Indian Wars 1876 - 1881, Dawes Act 1887 = allotted smaller lots to individuals and excess land was given to the whites
• Indian Reorganization Act (FDR and the New Deal) 1. Reversed private holding 2. self-government (563 tribal governments) 3. same rights as US states 4. 8,000sq km returned under the law 5. 62 tribes disbanded 6. Bureau of Indian Affairs established
• Native American self-government Have power over everything except  1) the power to make war 2) engage in foreign relations 3) mint own money
• Dred Scott Case 1857, Supreme Court ruled: 1) Blacks, slave or free, are not citizens 2) No right to sue 3) Ban n slavery in Missouri Territory ruled unconstitutional 4) Denied citizens the right to "chattel property" without due process of the 5th amendment
• US civil war most traumatic of any US war. North 360,000 died, and South 258,000 died
• Civil Rights Act 1866 blacks have full citizenship
• Segregation 1) Citizenship test and grandfather clauses violated black voting rights 2) Civil Rights Act of 1875 attempted to reserve public segregation 3) Plessy v Ferguson --> segregation ok, separate but equal facilities provided = constitutional; no implied inferiority, Civil Rights Act of 1875 ruled unconstitutional NAACP founded in 1909 Brown v Board of Education --> overrules Plessy, separate is inherently unequal, public schools must desegregate
• Common law marriage No ceremony but hold themselves out as married and live together: in 1/4 of US states, living together alone is not enough, if valid same rights and duties as a married couple, can only end in a formal divorce
• Common law fiction husband and wife "one person"
• Common law 1) Wife owes husband "service," and husband can sue wife if she is injured for loss of service 2) all property shared, not 1/2 and 1/2 3) Husband has a duty to pay wife's debt but they must be reasonable 4) Community law in 8 states = property acquired during the marriage belongs to both
• Brech of promise to marry past: contact --> recovery possible now: not possible but engagement ring has to be returned
• nullity court declares a marriage void --> "never existed"
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• legal separation living apart of husband and wife --> suspends marriage relationship but husband still has duty to maintain his wife financially
• divorce Cout dissolves the marriage
• alienation of affection sue a third party that alienated with malice and intent the affections of a spouse
• paternity recognition Admitted by signing the birth certificate; if the man does not admit to paternity mother must file suit and get a child report and DNA test, and support must be paid until 18 to 21 years old; if the father does not pay: assignment of wages, seize property or bank account, jail
• minor v mature minors minor under 12  mature minor over 12 
• Custody physical control of the child (usually residence), things considered when deciding who should get custody: 1) age and sex of the child2) wishes of the child (through two attorneys, guardian ad litem, and attorney for the minor child)3) relation with parents and siblings4) mental and physical health of the parties
• support Money to take care of the child, based on the income of both parties and set via a mathematical formula
• visitation usually negotiated between the parties, if not, the court will enter orders at the time of the divorce
• alimony payment of support to former spouse
• temporary alimony orders alimony before the final divorce hearing/trial
• permanent alimony after divorce, can end if remarry or cohabitate with another partner
• rehabilitative alimony limited time period so spouse can "get back on their feet"
• palimony equitable action for long term partners
• US Constitution amendments 1) Freedom of religion, speech, press, and assembly 2) Right to bear arms 5) Indictment by jury; right to due process 6) speedy public trial by jury in criminal cases, to retain counsel 7) right to a jury in civil lawsuits 13) Abolishes slavery 14) defines citizenship 15) prohibits denial to vote base don race 

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