BUSINESS LAW

Many other countries use what system to pay attorneys?

"Loser pays" system in which the party losing a trial pays a reasonable attorney fee to the winning party

Mapp v. Ohio

"all evidence obtained by searches and seizures in violation of the Constitution is . . . inadmissible in a state court." = exclusionary rule

actus reus

"guilty act" our legal system generally does not punish persons for their thoughts does not mean that a defendant must always successfully complete a criminal act to be guilty must be voluntary and generally must be an act of commission rather than mere omission

The underlying rationale for what has come to be known as the "innocent bystander rule" seems to be that by

"passive inaction," defendant has made the injured party's situation no worse, and has merely failed to benefit him by interfering in his affairs.

All of the things that can be trademarked are

"short and simple"

Article III, Section 1 of the U.S. Constitution

"the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

Even if a contract must be in writing, if both parties have fully performed their part of the bargain, the court will not

"undo" the contract simply bc it was supposed to be in writing but is not.

Statutory law is frequently referred to as

"written law" because its exact wording is set forth in writing although the precise meaning is still subject to interpretation by the courts

Eighth amendment

''excessive bail'' shall not be required bans ''cruel and unusual punishment.'' ex: bars death penalty for minors

Contracts calling for the performance of personal services

(such as those of a teacher, physician or lawyer) are non-delegable without the obligee's consent most other contracts call for the performance of duties that are described as routine in nature

Rhona dies in 2020. Her will is: 12.58 million to husband 12.58 million to daughter 12.58 million to UT How much is subject to taxation under estate tax?

1 million of the daughter's

Common law created 3 categories of what might be generically called "lost"

1. Abandoned property 2. Lost property 3. Mislaid property

In almost every civil lawsuit, there is 2 things

1. Accuser 2. Accused

Adverse possession must meet 4 requirements

1. Actual 2. Hostile 3. Open and notorious 4. Continuous

3 large exemptions in estate taxes

1. Any and all assets going from a deceased person to a spouse 2. Any and all gifts going to a charity or nonprofit org 3. After erasing anything going to a spouse or charity, the next total 11.58 million going to everyone else is exempt no estate taxes need to be paid if you die with less than 11.58 million in wealth

Professor Gentile's 7 step approach to speaking up with impact:

1. Begin a conversation on shared values 2. We always have a choice 3. Normalize ethical challenges as part of the job 4. Effective advocates are those who value building a successful career and having a positive impact on their companies and communities 5. Align values with personal strengths 6. Practice using your effective voice 7. Combat rationalization of unethical choices

2 tools both layers can use to dismiss prospective jurors and prevent them from joining the actual jury

1. Challenge for cause 2. Peremptory challenges

2 diff sets of rules for contracts

1. Common law 2. Uniform Commercial Code

2 types of property in the community property system

1. Community property 2. Separate property

If company A's protectable trade secret was misappropriated by Company B, 2 things might happen

1. Company A could sue Company B for damages in a civil lawsuit filed under a state's common law or a statute that the state legislature might have enacted to protect trade secrets ex: Uniform Trade Secrets Act 2. State criminal authorities might bring criminal charges against Company B and its agents because stealing trade secrets is as wrongful as stealing any other form of property

3 categories of regulation in which Congress is authorized to engage under its commerce power:

1. Congress can regulate the channels of interstate commerce. 2. Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce 3. Congress has the power to regulate activities that substantially affect interstate commerce. Only the third category is implicated in the case at hand.

The determination of whether a particular subordinate is an employee or an independent contractor turns on 3 issues

1. Control 2. Compensation 3. Regularity of employment

4 major categories of persons owe a duty to disclose or abstain

1. Corporate insiders 2. Temporary insiders 3. Misappropriators 4. Tippee

UCC assumes that the parties considered 3 impt concepts when they formed their agreement

1. Course of performance 2. Course of dealing 3. Usage of trade

Most state courts fall into 3 categories:

1. Courts of limited jurisdiction 2. General trial courts 3. Appellate courts

2 specific types of third parties that do have rights to enforce someone else's contract

1. Creditor beneficiary 2. Donee beneficiary the parties both INTEND to benefit the third party

Proof for Tort of intentional infliction of mental distress

1. Defendant must act intentionally or recklessly. The defendant will be presumed to intend the natural consequences of his or her actions. And a defendant who is aware of a particular plaintiff's susceptibilities to mental distress will be judged accordingly. 2. Defendant's conduct must be extreme and outrageous. Mere insults are usually insufficient to meet this standard, as are profanity and other abuses of a relatively minor nature. 3. Plaintiff's emotional distress must be severe.

An acceptance must do what 3 things?

1. Demonstrate a definite, present intent to accept the offer (silence won't count unless previously indicated) 2. Must be unconditional and not add any terms that are additional to or different from those of the offer 3. Must be legally communicated to the offeror or to the offeror's agent

The answer may include several components:

1. Denial of the plaintiff's allegations 2. Defense after the denial if the defendant believes that the facts create a legally recognized defense against the claim 3. Counterclaim

Trademarks protect 4 things

1. Distinctive words 2. Phrase 3. Symbols 4. Devices adopted for the purpose of identifying the origin of goods or services available for sale

Limits on diversity of citizenship cases:

1. Diversity of citizenship exists only if there is no common state citizenship on opposite sides of the case (COMPLETE diversity) 2. If a corporation is a plaintiff or defendant, it is considered to be a citizen of the state where it was incorporated; in addition, if it has its principal place of business in another state, it is viewed as a citizen of that state as well. 3. Juries in federal courts are taken from the local population just as they are in state courts, and federal judges are almost always from the state where they serve. For these reasons, and also because diversity of citizenship cases involve questions of state law, several bills to eliminate diversity of citizenship as a basis for federal subject matter jurisdiction have been introduced in Congress over the years, but no such bill has passed so far.

3 other major federal laws that ban employment discrimination of diff types

1. Employment at will doctrine 2. Title VII of the 1964 Civil Rights Act 3. Illegal Discrimination Under Title VII

3 types of authority

1. Express authority 2. Implied authority 3. Apparent authority

There are two general categories of civil cases that the Constitution and federal statutes have placed within the subject matter jurisdiction of the federal courts:

1. Federal Question Cases 2. Diversity of Citizenship cases

2 varieties of charges:

1. General charge 2. Special charge

4 reasons to support the jury system

1. General experience in "living" is more important for deciding the average case than is any kind of specialized training or experience. 2. Juries serve as a valuable check on the power of the judicial branch of govt 3. Juries provide a means for direct input of community values into the legal system. 4. In the case of complex lawsuits, the use of juries forces attorneys to simplify the case.

Marks fall into 4 categories and not all are protectable

1. Generic 2. Descriptive 3. Suggestive 4. Arbitrary or fanciful

3 standard elements of a guaranty contract

1. Guarantor promises to pay the debtor's obligation if the debtor does not ("secondary liability") 2. A guaranty promise is made for the benefit of the debtor (if the guarantor's main purpose in making the promise is to benefit himself, the deal is not a guaranty contract and need not be in writing to be enforceable) 3. A guaranty promise is made to the creditor, not to the debtor

Protective measure factors:

1. How valuable is the info? 2. How much would additional protective measures cost? 3. How much would additional security efforts interfere with employees' ability to do their jobs? 4. How much would additional protection would extra security measures actually provide

2 signs of Substantial Contact

1. If a nonresident has had continuing contacts with the forum state --> either maintained a physical presence in the forum state or has continually targeted activities at the forum state over a substantial period of time --> general person jurisdiction 2. if the nonresident defendant has intentionally engaged in a specific act in the forum state such as going into the state and committing a tort or making a contract with someone in the forum state --> specific personal jurisdiction

The superior is clearly at fault in the following situations

1. If the superior directs the subordinate to commit the tort, he or she is responsible 2. If the superior carelessly allows the subordinate to operate potentially dangerous equipment even though he or she knows or should know that the subordinate is unqualified or incapable of handling it safely, the superior is responsible for any resulting harm = negligent entrustment

Why are the terms law and ethics not synonymous?

1. In some situations ethical standards are higher, or more difficult to meet, than those imposed by law. 2. Sometimes the law imposes higher standards than do our ethical standards. 3. Many rules of law and court decisions are based on statutory or practical requirements that have little or no relationship to ethical considerations.

Fundamental concepts of Intellectual Property Law

1. Intellectual property law protects certain types of knowledge, ideas and expressions by granting rights to creators 2. When someone else violates these rights, the violator is engaging in a type of competition that has been declared unlawful. In many sectors of the economy, the most important type of competition is the competitive rivalry to innovate. 3. General consensus that IPL benefit society in the long run but that can go too far. The best system provides protection to intellectual property that is no greater than is necessary to create and maintain adequate incentives to innovate and create over time.

3 kinds of evidence that are commonly excluded by the rules

1. Irrelevant evidence 2. Hearsay 3. Opinion

Factors in reaching a reasonable period:

1. Language used in the offer 2. Means of communication used 3. Prevailing market conditions

Situations where a "duty to speak" exists

1. Latent defect/hidden defect 2. Fiduciary relationship exists 3. In which one party has superior knowledge about the subject matter of the contract as a result of his or her experience, training or special relationship with the subject matter

Defamation takes 2 basic forms

1. Libel 2. Slander

The Copyright Act enumerates 6 types of protected works:

1. Literary works ex: books, poems, stories, newspapers, magazines, web pages, computer software 2. Musical works and sound recordings 3. Dramatic works like a play 4. Pictorial, graphic, and sculptural works 5. Motion pictures 6. Architectural works

3 categories of people may lack the capacity to form a fully binding contract and usu form voidable contracts

1. Minor 2. Mentally incompetent persons 3. Intoxicated persons

Several circumstances in which minors often have a more difficult time obtaining full refunds

1. Minor are generally held liable for at least the reasonable value of NECESSARIES that they have purchased including food, lodging, clothing and medicine 2. Common carriers such as airlines, trains, buses and ferries usu have a legal duty to deal with everyone who requests and is able to pay for their services and disaffirmance against such entities is generally not permitted once the contract has been fully executed but a 17 yr old can surrender the ticket BEFORE the flight and receive a refund 3. Special rules apply to minors who misrepresent their age; minor can still disaffirm the contract only if the contract has not yet been performed

2 requirements must be met before a particular item of property is classified as a good:

1. Must be tangible 2. Must be movable

7 Required characteristics of a valid contract:

1. Must start with a valid offer 2. Offer must be accepted 3. Consideration must be present 4. All sides must have the capacity to make a contract 5. All sides must assent to the agreement 6. The agreement must have a legal purpose 7. And sometimes, but by no means always, the agreement must be in writing

When is the writing sufficient?

1. Names of both parties 2. The subject matter of the contract 3. The consideration to be paid 4. The signature of the defendant 5. Any other terms that the court feels are material under the circumstances Writing does not have to be in particular form or complete in every detail and bc of the provision that a memorandum or note of the contract may satisfy the statute of frauds, it is entirely possible that an oral contract can be validated by the production in court of a sales slip, check, invoice or some other writing frequently happens that the contract is evidenced by two or more separate writings, none of which alone is sufficiently complete --> writings may be construed together, thus satisfying the memorandum requirement if the writings clearly refer to one another, are physically attached or are clearly related

Scenarios in which trade secrets have and have not been misappropriated or improperly acquired

1. Not acceptable: Info disclosed by former employees: if an employee intentionally uses the info for their own benefit or discloses it to someone outside the employment relationships either while still an employee or afterward, they will be liable for misappropriation 2. Not acceptable: Conduct that is independently illegal: if a competitor acquires info by engaging in bribery, burglary, trespassing, tapping tele convos, or by fraudulent misrepresentations, it has misappropriated the info it acquires 3. Not acceptable: legal conduct that intentionally seeks to overcome reasonable security measures: ex: aerial photography; one of the most common forms of misappropriation is the breach of a duty of confidentiality 4. Acceptable: Indpt research: no misapprop with indpt research or if they lawfully acquire the product and reverse engineers to product to discover the trade secret

Categories of unprotected speech

1. Obscenity 2. Defamation 3. Fighting words

3 situations where the mailbox rule is not applicable

1. Offeror may specifically state in the offer that an acceptance will be effective only when actually received by the offeror 2. The offeror may require that an acceptance be made by a particular method 3. If an offeree mails a rejection first, and later changes his mind and sends an acceptance, the acceptance is not effective until received --> the first message to be received by the offeror will be the effective one

One response to insider trading problem is Sec 16 of the 1934 Act, which applies to 3 categories of persons:

1. Officers 2. Directors 3. Owners of more than 10% of the shares of any one class of stock Must file 3 types of reports with the SEC 1. Initial report revealing the holdings when a director of officers takes office 2. or when a stock holder first obtains a 10% holding 3. Additional report each month thereafter in which a change in holdings occurs

The creation of a bailment requires that

1. One party must deliver possession (but not title) of personal property to the other 2. the parties must agree that the recipient of the property will later return it, deliver it to a third party or otherwise dispose of it in some specified manner

3 diff ways a person or org can be considered to be a merchant

1. One who deals in goods of the kind that are involved under the particular contract in question is a merchant (including wholesalers and even manufacturers); a party is considered a merchant, however only for the types of goods dealt with regularly in his or her business 2. Even if a person does not regularly "deal" in a particular type of goods, he is nevertheless a merchant if he "by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction" 3. If a party is not a merchant under either of the first 2 categories, he or she may nevertheless be treated as one by employing a merchant to act in his or her behalf in a particular transaction common thread is possession of or access to a degree of commercial expertise UCC imposes a higher duty of "good faith" on merchants

3 stages in Title VII cases

1. Plaintiffs present the basic case 2. Defendants an rebut the plaintiff's case 3. The plaintiffs can argue that the rebuttal is a mere pretext

Consideration has 3 elements

1. Promises must suffer a legal detriment by doing or promising to do something they are not already obligated to do OR refraining from doing or promising to refrain from doing something they are legally entitled to do 2. Detriments must induce the promise 3. The promises must induce the detriment

Two types of comparative negligence

1. Pure 2. Modified

2 general situations which constitute illegal sexual harassment

1. Quid pro quo 2. Hostile work environment

Four primary purposes of criminal punishment

1. Rehabilitation 2. Restraint or incapacitation 3. Retribution 4. Deterrence

4 Requisites of a Legal Rules

1. Relatively certain 2. Relatively flexible 3. Known or knowable 4. Apparently reasonable

Pros and Cons of Adversarial

1. Requires fewer judges and more lawyers 2. Shifts more of the cost to the private sector 3. Puts primary responsibility for developing the facts in the hands of those (parties and their attorneys) who have a natural incentive to do a more thorough job but this may mean their aim is strategy than the truth

Pros and Cons of inquisitorial system

1. Requires that more of the time and energy devoted to a case be expended by public officials (judges and investigators) 2. Places more of the cost in the public sector

There are 4 particular types of spoken lies that amount to slander per se

1. Serious crimes 2. Contagious diseases 3. Professional incompetence 4. Sexual behavior In THESE slander cases, no special damages need to be proved

The prosecutor in a criminal case must do 3 things to obtain a valid conviction:

1. Show that the defendant's actions violated an existing criminal statute 2. prove beyond a reasonable doubt that the defendant did do the acts alleged 3. prove that the defendant had the requisite intent to violate the law

3 keys to winning a case if a plaintiff goes to court and seeks to prove that a competitor has misused or misappropriated its secret info

1. Show that the info was a trade secret 2. Maintained reasonable measures to protect its secret 3. The defendant improperly acquired, used, or disclosed the secret information

Federal courts can be placed into 3 main categories:

1. Specialized trial courts 2. U.S. district courts 3. Appellate courts

For a case to proceed, a court normally must have authority in the form of what two jurisidctions

1. Subject matter jurisdiction 2. Personal jurisdiction

2 most common types of concurrent ownership

1. Tenancy in common (tenants in common or cotenants) 2. Joint tenancy (joint tenants)

To be successful in a fraud action, the plaintiff is required to show ALL of the following 4 factors:

1. That defendant made a misrepresentation of a material or important fact 2. That the statement was made with the intent to deceive 3. That plaintiff reasonably relied on the misrepresentation 4. That plaintiff suffered an injury as a result

Covenants not to complete are lawful only if 3 conditions are met

1. The agreement must be of an ancillary nature 2. The promisee must have a legit business interest that warrants temporary protection from competition 3. The agreement must be reasonable in its scope so that it does not limit competition more than is reasonable necessary to protect the promisee's legit interest

2 impt points about arbitration

1. The dispute has already happened. Many arbitrations follow that pattern: the bad thing happens first, and then the two sides sign an agreement to go to through arbitration second. But, arbitration agreements are also generally valid if they are signed before any dispute exists in the first place. Many employers require employees to sign arbitration clauses in their employment contracts in which the employees agree that, if they have future disputes over pay, promotions, or most anything else, they will go through arbitration and not be able to sue their employers in court. 2. When a lower court decides a case in a way that either side dislikes, either side is free to appeal the decision to a higher court as described early in the course. However, there is essentially no appeal from an arbitrator's award. A court will not review an arbitrator's factual or legal determination unless the evidence shows that the award was affected by fraud or collusion.

In sexual harassment cases however, the Supreme Court has created a special defense for employers even when the requisite degree of supervisory involvement exists --> the defense strongly encourages employers to have anti-harassment policies in the workplace For this defense to be applicable, the following must be proved

1. The employee did not suffer a tangible job detriment, such as discharge, demotion, undesirable reassignment and so forth. (usu fails in quid pro quo) 2. The employer had adopted, publicized and enforced a company policy condemning sexual harassment that provided a clear procedure for employees to make complaints. The complaint procedure must provide a means for the employee to go over the head of a supervisor when the supervisor is the alleged harasser. 3. If the employee did not suffer a tangible job detriment, and the employer had a clear and well publicized policy against sexual harassment with adequate complaint procedures, the employer is not liable for the Title VII violation if the employee failed to use these complaint procedures.

What can qualify as a trade secret? 4 factors

1. The extent to which the info is or not known outside the company 2. How easy or difficult it would be for someone else to independently develop the info or to acquire it properly 3. the value of the info to the company 4. The amount of time and money it took the company to create the information

Some rights can't be assigned without the obligor's consent

1. The terms of the contract expressly prohibit assignment by one or both parties 2. The contract is personal in nature; specifically, the right in question involves a substantial personal relationship between the original parties to the contract 3. The assignment would materially alter the duties of the obligor

Article I, Section 8

1. To lay and collect Taxes, Dues, Imposts and Excises, to pay the Debts and provide for the commonDefense and general Welfare of the United States 2. To borrow Money on the Credit of the United States 3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes [emphasis added 4. To establish an uniform rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; 5. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures 6. To establish Post Offices and post Roads 7. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries 8. To constitute Tribunals inferior to the Supreme Court 9. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water 10. To raise and support Armies, but noAppropriation of Money to that Use shall be for a longer Term than two Years 11. To provide and maintain a Navy; 12. To make Rules for the Government and Regulation of the land and naval forces; 13. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions 14. To provide for organizing, arming, and disciplining the Militia 15. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof

The law of intellectual property covers 4 such protections

1. Trademarks 2. Trade secrets 3. Patents 4. Copyrights

Two primary types of courts in both the state and federal systems

1. Trial courts 2. Appellate courts

In assessing whether a mark creates a likelihood of confusion as to affiliation or endorsement, courts consider facts:

1. Type of mark allegedly infringed 2. Similarity between the two marks 3. Similarity of products and services 4. Identity of retail outlets and purchasers 5. The identity of the advertising media used 6. The defendant's intent 7. Any evidence of actual confusion

Moral duty of loyalty is based on 2 facts:

1. Virtue of the relationship --> expectation that we will further his or her interests 2. Relationship has placed us in a position where we have the ability to cause serious harm if we don't act in that person's interests

4 factors for fair use

1. Whether such use is of a commercial nature or is for nonprofit educational purposes 2. The nature of the copyrighted work 3. The amount of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for the copyrighted work

Key ideas from Podias v. Mairs

1. Who was being sued? -Passengers in car involved in the accident 2. Appellate court disagreed with summary judgment and the case was remanded. 3. Unless the case settles or the plaintiff gives up on their case, the plaintiff will get his chance to present arguments to a jury

The elements of false imprisonment are

1. Willful detention We conclude that these facts are sufficient to support the jury's finding that Cockrell was willfully detained without his consent. 2. Performed without consent 3. Without the authority of law Cockrell testified that he had done "nothing" and that there was "no way"a person could see anything under his shirt. We conclude that a rational jury could have found that Navarro did not "reasonably believe" a theft had occurred and therefore lacked authority to detain Cockrell. Accordingly Navarro's contemporaneous search was unreasonable in scope, because he had no probable cause to believe that Cockrell had hidden any merchandise under the bandage.

Offer's 3 basic requirements:

1. a manifestation of an intent to contract 2. a reasonably definite indication of what the 2 sides are to do 3. a communication of the proposal to the intended offeree

Until the late 1930s, the Supreme Court interpreted Congress's authority under the Commerce Clause narrowly, holding that it could primarily regulate business activities that did 2 things

1. actually crossed state lines 2. involved instrumentalities of interstate commerce such as rivers or railroads But beginning in the 1930s, the Court broadened definition of interstate commerce significantly by holding that Congress could regulate commerce occurring entirely within the border of a single state so long as the commercial activity had "any appreciable effect" on interstate or foreign commerce.

For the purposes of establishing personal jurisdiction over a defendant, due process requires

1. adequate notice 2. a hearing 3. an impartial decision maker 4. substantial contact between the defendant and the state where the lawsuit has been filed

Any contractual duty may be delegated without the obligee's consent except

1. duties arising out of contracts which expressly prohibit delegation 2. contracts in which the obligee has a "substantial interest" in having the obligator-delegator perform personally

In a situation in which an exculpatory clause is potentially effective bc it does not involve a matter affecting public interest, it will be effective to bar a negligence suit only if the clause is

1. either a very conspicuous or specifically called to the attention of the potential plaintiff 2. written in a way that clearly informs the potential plaintiff that the drafter of the clause seeks to be relieved from liability for its negligence of the negligence of its employees

When we enter such relationships with loyalty, we take on an affirmative obligation to

1. fully disclose to the other person all material info that is relevant to our dealings 2. keep confidential any info that the other party reasonably expects us to protect 3. avoid undisclosed conflicts of interest 4. generally act in the best interests of the other party, even if such action is not entirely in our own best interests

Instructions given by the judge include

1. general rules of conduct 2. definitions of certain relevant legal terms 3. court's charge to the jury

In order for the donor to accomplish a transfer of ownership by gift, the donor must

1. have a present intent to transfer ownership 2. the donor must deliver possession to the donee

Strength of a trademark involves 2 components

1. inherent on intrinsic distinctiveness 2. distinctiveness it has acquired in the marketplace

Oral or written evidence is hearsay if

1. it consists of a statement made by some person who is not testifying personally in court 2. the evidence is offered in court for the purpose of proving the truth of that statement

Mediation offers 2 final advantages worth raising:

1. often offers a very good chance for the parties to a dispute to "put it behind them" --> no final outcome until and unless the parties to a dispute reach an agreement that is acceptable to both of them 2. generally doesn't limit your options if things don't work out and a settlement is not reached --> if you go through mediation and fail to reach a satisfactory settlement, then you can still go through arbitration later or sue in court later

Characteristics of a fee simple interest

1. ownership is of unlimited duration 2. the owner is free to do whatever he or she chooses with the property so long as the owner abides by the law and does not interfere with the rights of adjoining landowners

The requirement that possession of the property be delivered normally means that

1. property must be transferred to the bailee 2. the bailee must acquire control over the item 3. the bailee must knowingly accept the property

In our legal system, we live under two distinct, and essentially separate, sovereign types of government:

1. state 2. federal/national

To win, a plaintiff in a negligence case must show:

1. that the defendant owed the plaintiff a duty (usually a duty of due care) 2. that the defendant breached that duty 3. that the defendant was a factual cause of an injury 4. that the defendant's breach proximately caused the injury 5. that the plaintiff suffered a specific injury

What situations does the FMLA act cover?

1. the birth of a child and to care for the newborn child within one year of birth 2. the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement 3. caring for the employee's spouse, child, or parent who had serious health condition 4. a serious health condition that makes the employee unable to perform the essential functions of his or her job

To show a business necessity, the employer must prove that

1. the challenged employment practice was necessary to achieve an important business objective 2. the practice actually achieves this objective

To win assault and battery cases, plaintiff's must prove

1. the defendant's affirmative conduct 2. intent 3. the plaintiff's injury

A work created for the employer by an indpt contractor can be a work for hire if

1. the employer and indpt contractor made a written agreement signed by both parties BEFORE the indpt contractor started work 2. the agreement specially commissioned the work as a work for hire 3. the work was within one of 9 categories a. contribution to a collective work b. a part of a motion picture or other audiovisual c. translation d. supplementary work e. a compilation f. an instructional text g. a test h. answer material for a test i. an atlas

If the plaintiff files the motion, the court will grant it only if what 3 things?

1. the plaintiff has produced evidence so strong that it proves all of the elements of its claim so clearly that there is no genuine fact issue on any of these elements 2. the defendant has failed to present evidence that creates doubt about any of these elements 3. the defendant also has failed to present evidence sufficient to create a genuine issue on an affirmative defense

Illegal discrimination can be proved in either of 2 ways

1. the plaintiff may show that the defendant had engaged in intentional discrimination = disparate treatment 2. the plaintiff may show that some employment practice or policy of the defendant's has had a discriminatory effect = disparate impact

To state a dilution claim under the TDRA, a plaintiff must show that

1. the plaintiff owns a famous mark 2. the defendant has commenced using a mark in commerce that allegedly is diluting the famous mark 3. similarity between the defendant's mark and the famous mark gives rise to an association between the marks 4. the association is likely to impair the distinctiveness of the famous mark or likely to harm the reputation of the famous mark

3 issues that businesspeople should know about where valid contracts are concerned

1. the rights of third parties 2. the assignment of rights 3. the delegation of duties

Verbal contracts of $500 or more are enforceable in 4 different circumstances

1. the seller has already substantially begun producing specially made goods 2. payment has been made and accepted or goods have been received and accepted 3. between merchants there has been a confirmatory memorandum sent and the receiving party did not object to its terms in writing within 10 days 4. the party against whom the contract is to be enforced admitted in court proceedings that an oral agreement existed

Depositions are taken for 4 reasons:

1. to learn what the key witnesses know about the case 2. to gain leads that will help obtain additional information, 3. to preserve the testimony of witnesses who might die or disappear 4. to establish a foundation for cross-examination of witnesses who might later change their stories

4 arguments on why the jury system is a poor method for resolving disputes:

1.Jurors do not have the experience or training to sift through substantial amounts of evidence, weigh it, and make carefully reasoned decisions. 2.Untrained and inexperienced decision makers are likely to be influenced too easily by irrelevant sympathies or by the rhetoric of a highly skilled attorney. 3. Many of the rules of procedure and evidence that lengthen and complicate lawsuits exist only to accommodate an untrained and inexperienced fact-finding body. 4. There are some types of cases, such as patent infringement suits, that are simply too complex factually and legally for most jurors to understand.

How many U.S. courts of appeal are there?

13 11 of these located in "circuits" across the country, have jurisdiction to hear appeals from the district courts located in the states within their respective boundaries

Most populous states have how many U.S. districts?

2, 3, or 4

The defendant must respond within a specified time period of how many days by either filing a motion to dismiss or an answer.

20 days in federal district courts and about the same amount of time in most state courts

Grand jury typically consists of

23 members of the community who hear evidence presented by the prosecution

As of 2020, the federal estate tax carries a maximum tax rate of

40%

Congress has created how many judicial districts?

94, each of which covers all or part of a state or a U.S. territory.

Current term of protection applied to a work for hire is

95 years from the date of publication or equivalent or 120 years from the data or creation, whichever is shorter

Agreements must have what if they are to stand?

A legal purpose don't if they violate state statues or if one of the parties is not licensed to perform the work that the agreement requires or if they amount to bad public policy and would be bad for society

Direct liability

A liability which arises in cases in which the officer committed an intentional or negligent tort in violation of the employing agency's orders or policies.

How does mediation seek to achieve the goal?

A mediator does not impose a solution and instead tries to help the parties themselves find a solution to their problem and does not have power over the outcome in the way that an arbitrator does

Offeree

A person to whom an offer is made.

Offeror

A person who makes an offer.

Defenses

A plaintiff who has consented to offensive contacts and the threat of them cannot sue for assault and battery. Self-defense creates a well-recognized defense to assault and battery. If you punch another person, it usually amounts to a battery. But if you are under attack and punch the attacker, it often does not. Generally, courts view legitimate self-defense asa degree of force that is reasonable, under the circumstances, to stop an attack.

Fiduciary relationships

A relationship of trust and confidence, in which there are legally enforceable obligations of loyalty ex: agent-principal

Ann, Bob, and Carol are involved in a pro-life organization. Ann and Bob often carry signs in a picket line in a park near an abortion clinic. Ann's condemns abortions in a general way. Bob's claims that a doctor who works at the clinic across the street does not have a medical license, and the claim is untrue. Carol hands out pro-life leaflets to coworkers at a corporation where she works, but her boss asks her to stop. Which of the three have engaged in protected free speech?

A. Ann Ann has a right to voice her opinion. Bob, by engaging in defamation, is not protected. Carol is not protected in her situation because she is working at a private company, and not for the government.

Max, a resident of Texas, sues the Houston Police Department after he is arrested during a protest. He claims his free speech rights under the U.S. Constitution have been violated. He seeks $50,000. Can he bring his claim to federal court?

A. Yes Don't be too distracted by the "above or below $75,000" issue. The number of dollars involved is relevant only in a diversity of citizenship situation. Max can sue no matter how much his is seeking because his case is based on federal law and jurisdiction is based on a federal question. Had Max's suit been a claim based on state law, he could successfully file in federal court only if he and the defendant were citizens of different states and more than $75,000 was at stake.

Paul Plaintiff sues Donna Defendant in a tort case. He accuses her of running a stop sign and hitting his car and seeks damages to compensate him for his losses. Paul's case will be a ___________ lawsuit. In the case, Paul's burden of proof will be to prove his case ____________________.

A. civil; by preponderance of the evidence

Carl challenges a statute under his 14th Amendment right to equal protection. He argues that the law makes distinctions based upon race, and that it must be struck down. The court will apply ______________ scrutiny to the claim. If it wishes to keep the law in place, the government will have to convince the court that it is necessary to further a(n) ______________ state interest.

A. strict; compelling

Module 40

Acceptance and Termination

Conclusion

Accordingly, defendants are enjoined, for a period of six months from the date of this decision, from utilizing as part of DTI's systems any versions of its database manager, menu, communications, and report writer programs created in whole or in part by either Vafa or Newlin. In addition, Vafa and Newlin are enjoined from contributing to the creation of any new programs embodying the above-mentioned utilities for the same period. DTI is otherwise free to develop new programs, provided that it does not in any way rely on the restricted programs in this development.

Vigilance

Acting ethically must be a corporate priority every day. Top managers set the ethical tone for corporations and they must monitor their own behavior with particular care --> tend to view themselves as more ethical than the average person and certainly more ethical than their competitors

Both civil and criminal proceedings in the U.S. are based on what system?

Adversarial (one of the key features of the common-law system that is inherited from England)

Module 55

Agency Law - Introduction and Liability for Contracts

Module 56

Agency Law - Negligence Liability

What methods of expression are within the scope of the Free Speech Clause?

All methods of expression, including spoken and written communications, those recorded on tape, film etc symbolic expression is also protected the giving of money to political candidates, charitable organizations or various other entities is even treated as a form of protected expression

Module 9

Alternative Dispute Resolution

Writ of certiorari

An order of a higher court requiring a lower court to send to it the documentary record of the trial.

Walter makes watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He calls the new watch the "Neptune" and plans to start selling it in his shop. What kind of mark is "Neptune"?

Arbitrary

Arbitrary of fanciful

Arbitrary: common words used in a meaningless context ex: Apple, Camel cigarettes, Shell gasoline Fanciful: new word that didn't exist before a company invented it ex: Xerox or Clorox Always protectable without a demonstration of secondary meaning

Module 18

Are Corporations Moral Agents?

Module 43

Assent Issues Part 1

Module 44

Assent Part 2

Walmart Stores, Inc. c. Cockrell

At common law, even a well-founded belief by a shopkeeper that a theft had occurred frequently would not prevent the success of a later false imprisonment claim if, for whatever reason, no criminal conviction was obtained. However, all state legislatures have acted to protect shopkeepers with laws that prevent recovery for false imprisonment when store owners have probable cause to suspect shoplifting and they conduct a detention in a reasonable manner.And so, in many lawsuits in which a store wrongly accuses a customer of shoplifting and the customer later sues for false imprisonment, the key is often whether the search was "reasonable". KarlCockrell and his parents went to the layaway department at a Wal-Mart store. Karl decided to leave the store. As he was walking through the front door, a loss-prevention officer stopped him and requested that Karl accompany him to the manager's office. Once in the office, the officer instructed Karl to pull down his pants. The officer shook the pants to remove any stolen property. Nothing fell out. The loss-prevention officer then instructed Karl to remove his shirt. Karl had a large surgical wound on the right side of his abdomen that was covered by a bandage. Karl was told to remove the bandage, despite his explanation that the bandage maintained a sterile environment around his wound. The officer insisted the bandage be removed, and Karl took off the bandage. No merchandise was found. The loss-prevention officer apologized and let Karl go.Karl sued for false imprisonment. The trial court found in favor of Cockrell. Wal-Mart appealed

Consider Abner v. Doubleday, a case that will be heard by a U.S. Court of Appeals. Which of the following can you say is definitely true?

B. Abner is bringing the appeal to the U.S. Court of Appeals.

Walter makes watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He calls the new watch the "Neptune" and plans to start selling it in his shop. Which can he trademark? A. Design B. Name C. Both

B. Name Designs and inventions are usu protected as trade secrets or with patents.

Paul Plaintiff, a resident of Texas, files a lawsuit in Texas against Don Defendant, a resident of California. Don receives notice of the lawsuit, and tells his lawyer, "I don't want to travel to Texas to be sued by this guy." Don's lawyer says, "Maybe you don't have to." The lawyer argues that the Texas court lacks personal jurisdiction over Don. Paul's lawyer asserts that the court does have personal jurisdiction, and that the case should proceed. Six months before, Don travelled to Texas, signed a contract with Paul while he was there, and returned to California. He has made no other trips to Texas, and has had no other interactions with the state. In Paul's lawsuit, he alleges that Don has breached that contract.Which of the following types of personal jurisdiction does the Texas court have over Don?

B. Specific personal jurisdiction on engaged in a specific act (signing the contract) in the forum state (Texas), and the lawsuit arises out of that specific act. Don has no long term presence in Texas or regular Texas activities, and so there is no general personal jurisdiction.

Jack loses a huge sum in a lawsuit with Pat Plaintiff, and he does not pay Pat for a long time. Pat's lawyer goes back to court and seeks the court's help in collecting what is owed. The court issues a document that empowers a sheriff to seize Jack's car and sell it at auction to raise part of the money. The court issues a second document that orders Jack's bank to deliver some of Jack's deposits into the custody of the court. The first document is a writ of ______________, and the second document is a writ of __________________.

B. execution; garnishment

Fred is a prospective juror in a case in which Al Attorney will be asking for $10,000,000in damages. During voir dire questioning, Al gets the feeling that Fred will be unlikely to award such a large sum. He does not have a good argument that Fred will be biased or will fail to be impartial, but he would still like to keep him off the jury. To do so, Al will probably have to use which type of challenge?

B. peremptory challenge

Bailee's rights to possession

Bailee usu has right to retain possession for the entire time in a contract if the bailor wrongfully retakes possession before the agreed time has expired, the bailee is entitled to damages for breach of contract if the bailed property is stolen, destroyed or damaged by a third party, the bailee has a right to initiate legal action to recover the property or receive money damages from the third party

Sue rents a Segway scooter. While riding around downtown, she spots her arch enemy Archie, who is standing on a sidewalk facing away from her and looking at his phone. Sue grimaces, sets her shoulders, and accelerates to the Segway's top speed of 5miles per hour. With a look of pure rage, she zeroes in on Archie, who is still looking at his phone and scrolling through an endless stream of nothing in particular.Eventually, Sue reaches Archie and runs into him from behind, knocking him down to the sidewalk. Archie never saw it coming. In the fall, he breaks his wrist. What torts has Sue committed

Battery. Since Archie was never afraid, Sue has not committed assault. But, since she deliberately acted and caused a harmful bodily contact, she has committed battery.

Mistake

Because ignorance of the law is no excuse, a mistake of LAW is generally no defense to a criminal charge Many courts will find that a mistake of law negates the intent element if (1) the law was not reasonably made known to the public, or (2) the defendant reasonably relied on an erroneous but official statement of the law (such as in a judicial opinion or administrative order) Defense made on mistake of FACT is more likely to succeed

Billy, age 10, walks into a baseball card shop and tells the owner that he has an Aaron Judge rookie card. The owner offers to pay Billy 25 for the card if he brings it by tom. Billy says "It's a deal" shakes the owner's hand and leaves. Select the correct descriptive terms.

Bilateral Voidable bc Billy is a minor Express (stated) Executory (unfinished) UCC principles

Imagine that Peter, who works for Pepsi, puts 200 cans of Pepsi into an empty vending machine on Monday morning.Later that day,Karl Klutz buys a Pepsi from the same machine and takes it out onto a second floor balcony.Karl sees Vince Victim down below, waves to him, and fumbles the Pepsi.The can describes a perfect arc and conks Vince on the head, knocking him unconscious.When he comes to, Vince feels like filing a lawsuit. Whose actions are causes in fact of this injury

Both Peter and Karl. If you eliminate either's actions, the accident doesn't happen.But as we will see shortly, it is very unlikely that Peter will be held responsible for Vince's injuries. In general, people and companies are not held legally responsible for consequences over which they have no control, because even when we act carelessly, there can be many ripple effects and unpredictable consequences.

Paul owns 2 properties outside Woodsfield, Ohio. Gary after viewing both acreages makes Paul a written offer to purchase one for 18,000. Paul accepts the offer. It later develops that Gary had one property in mind while Paul, after reading the description contained in Gary's offer, honestly and reasonable believed that Gary was referring to the other property. Who can rescind the agreement?

Both can rescind the agreement because there was a mutual mistake about the identity of the contract's subject matter

In 1890, Congress passed the Sherman Antitrust Act. In 2008, Congress passed the Genetic Information Nondiscrimination Act. Which of these is/are a statute?

Both. Written laws passed by legislative bodies like Congress are statutes.

Alice is distracted by her navigation system and strikes Al's car with her car. Brenda is driving 50 miles per hour over the posted speed limit while drunk when she strikes Bill's car. Which of them has likely committed an intentional tort?

Brenda Simple carelessness like Alice's leads to negligence lawsuits. Deliberate actions, and reckless actions like Brenda's, lead to intentional tort cases.

Max sues the Houston Police Department after he is arrested during a protest. He claims his free speech rights under the U.S. Constitution have been violated.Jack sues MegaCorp over crop losses after MegaCorp dumps toxic chemicals into a river that eventually runs across his farm. He sues based on the federal Clean Water Act and also under Texas tort law. Which of these two plaintiffs could bring their case to federal court?

C. Both Max's case is based on the federal Constitution, so it's in. And although Jack's lawsuit is based on both state and federal law, since one of his claims raises a federal question a federal court would also have subject matter jurisdiction over his case.

When Congress passes a statute, it exercises ______________ power. If someone challenges the law in court and argues that the new law violates a part of the Constitution, the courts will use their power of ______________ to evaluate the law.

C. legislative; judicial review

Under the Supreme Court's modern interpretation of the Commerce Clause, the most important factor in determining whether a business' activities count as interstate commerce is whether

C. the activities have any appreciable effect on interstate commerce

Alpha Company would like to give $10,000 to be used to fund ads that will seek to help elect Senator Smith. Alpha also runs many kinds of advertisements on TV and the internet, and hopes to be allowed to continue to do so without restriction. The ___________________ is/are protected as free speech.

C.political donation and advertisements Political speech by corporations and truthful commercial speech by corporations each receive First Amendment protection.

Similarities of personal property to real property

Can be subject to many of the same categories of concurrent ownership as real property, including tenancy in common and joint tenancy

Defamation

Companies or individuals who communicate lies are potentially liable in damages to the person whose reputation is injured

Structuring Compensation

Compensation can incentivize hard work, creative work, and, if poorly structured, dishonest work 1. Be reasonable 2. Do not overemphasize performance measures that can be manipulated 3. Reward and promote those who do the right thing 4. Must walk the walk

Ann sues Bill in a negligence lawsuit. What type(s) of damages can she seek?

Compensatory

Where businesses are concerned, most federal laws are passed under

Congress' power to regulate interstate commerce.

Module 41

Consideration

What sits atop our legal system?

Constitution - no other type of law can contradict the ideas expressed within it

Module 11

Constitutional Law

Module 34

Copyrights

Codes of Ethics

Corporate leaders who wish to improve the ethical performance of employees should adopt a corporate code of ethics or code of conduct bc ppl more inclined when it is expected and rewarded First, engage employees in writing and revising the code. Active engagement can lead to more employee "buy-in" and more serious attempts to comply with the letter and spirit of the code Second, word the code in a straight-forward fashion and pervasively communicate it. Third, the firm should reward employees who behave consistently with the code, just as they should punish employees who violate its provisions. Fourth, managers in the firm should actually use the code to resolve ethical issues. Fifth, it must always be remembered that strengthening the structures, processes, and values that reinforce ethical behavior is a never-ending process. It must always be a priority.

The Agents of Society View and Corporate Social Responsibility

Corporate responsibility = expending corp resources doing good and meeting societal needs Questions about corporate social responsiveness do not necessarily arise every time a corporation's management considers spending corporate funds for a socially worthwhile --> social responsiveness can provide some of the same economic benefits to a corp ex: reputational capital Social contract = a corporation is the result of a contract between those forming the corporation and the society that permits its creation --> the corporation has a contract-like obligation to contribute positively to society, and the corporation's managers are not just agents of the shareholders but are also agents of society Donaldson hypothesized the existence of a society in which individuals always work and produce alone, and never in corporate form --> permit the legal creation of corporations only if the benefits to the public are great enough to justify the privileges granted to corporations (limited liability = only the corporate entity and its assets are liable for corporate debts, not the individual shareholders or managers --> put a lot of power in the few)

Module 2

Court Systems

Module 21

Criminal Law

Two examples of bodies of law that are primarily statutory in nature

Criminal law and tax law

Ron loses his discrimination claim in federal district court. If he wishes, he can appeal his case to a ________________ court. If he loses there, he can seek to have his case reviewed by ________________.

D. A U.S. Court of Appeals; the U.S. Supreme Court

Zena signs an arbitration agreement on her first day at a new job in which she agrees that if she has any disputes with the company in the future, she will not sue and will only pursue a remedy in arbitration. A year later, Zena has a car accident with Barry. Afterwards, they sign an agreement that they will arbitrate the dispute. A month after that, Zena does not get an expected promotion at work, and she thinks it is because her supervisor dislikes her personally and not because of the quality of her work. Now, Zena is upset at both her employer and at Barry, and she would like to "have her day in court" with both of them. That is to say, she wants to sue both, and not go through arbitration. Can she do so?

D. No, she must arbitrate both disputes.

Sam sues AlphaCo, his former employer. In his case, he alleges that AlphaCo illegally discriminated against him. During discovery, Sam's lawyer asks AlphaCo for its employment records over the last 10 years. The lawyer also wants to talk to Sam's former supervisor under oath and ask him about Sam's termination.The demand for the employment records is a(n) _______________. The lawyer would like to talk to the former supervisor as part of a(n) ______________.

D. request; deposition The demand for business records is a request for production of documents. The questioning of the supervisor will be a deposition because the lawyer will be talking to him in person, and not by submitting a written request for information, which would be an interrogatory.

Paul Plaintiff, a resident of Texas, files a lawsuit in Texas against Don Defendant, a resident of California. Don receives notice of the lawsuit, and tells his lawyer, "I don't want to travel to Texas to be sued by this guy." Don's lawyer says, "Maybe you don't have to." The lawyer argues that the Texas court lacks personal jurisdiction over Don. Don's lawyer asserts in a court filing that the court does have personal jurisdiction, and that the case should not proceed. He does not say anything else about the case in the filing.Don's lawyer has filed a(n) _____________________. This action ______________ give the Texas court personal jurisdiction over Don.

D. special appearance; does not

A recent study found that people who are in the center of social networks, who acts as brokers of information for others in the network, are more likely to believe that these others share their moral judgments than are other members of the networks. This finding indicates that people at the center of social networks are especially susceptible to the phenomenon of:

D.overconfidence bias This effect is the tendency to believe that other people think the same way that we do. Because of it, honest people often believe that, if they are honest themselves, then others will be honest as well.

Module 25

Defenses in Negligence Cases

Module 17

Difficulties in Ethical Decision Making

Module 51

Discrimination Law, Part 1

Module 52

Discrimination Law, Part 2

Some wrongful acts are of what nature?

Dual, both criminal and civil penalties

Adam sues Brenda and claims that Brenda's dog bit his leg. Brenda receives a copy of Adam's complaint, and in her answer, she alleges that her dog bit Adam when he was trespassing in her yard late at night, that he destroyed her fence when he ran away from the dog, and that he should pay $500 to compensate her for the fence repairs. Characterize the components of Brenda's answer.

E. It contains a denial and a counterclaim. She does not deny that Adam's claim of a dog bite is true. She asserts instead that there exists a legal justification for the bite. So, she raises a defense and does not make a denial. And, by asking for money to repair the fence, she raises a counterclaim.

The Supreme Court uses a fairly lax standard for what kind of legislation when equal protection challenges are raised?

Economic and social

Compensation

Employees are paid regularly Contractors tend to be paid by the job

Many common laws were initially created in

England centuries ago

Module 13

Equal protection

Module 16

Ethics Part 1

What exclusive rights do federal law grant to owners of copyrighted works?

Exclusive right to make copies, create derivative works, a movie from a book, action figure, etc distribute copies of the work, display the work and perform the work

A jury is what kind of body?

Fact finding body

Intentional confinement

False imprisonment can occur when the defendant confines the plaintiff in a room, a building, a car, or even a boat. It can even occur in the wide open spaces if the plaintiff is held in one spot against his or her will by force or threat. Now, if someone accidentally locks another in a room, negligence may perhaps be involved, but not false imprisonment. False imprisonment requires a wrongful intent on the defendant's part.

Module 57

Featured Case - Agency Law

Module 46

Featured Case - Covenants not to Compete

Module 39

Featured Case - Offers

Module 7

Featured Case - Personal Jurisdiction

Module 32

Featured Case - Trade Secrets

Module 30

Featured Case - Trademarks

Module 15

Featured Case- Free Speech

Module 12

Featured Case: Commerce Clause

Module 27

Featured Case: False Imprisonment

Principals and agents have what kind of relationship?

Fiduciary relationship, one of trust and confidence and law requires good faith from each party also requires that neither side keep info that relates to the agency relationship from the other

What is the foundational element in the determination of whether a duty exists?

Foreseeability, which is based on the defendant's knowledge of the risk of injury, practicality of preventing it, responsibility for creating the risk of harm and public policy

Module 14

Free Speech

Holographic wills

Handwritten wills that are prepared by the individual and without formal attestation must be entirely in the testator's own handwriting, including the signature no witnesses are required but most states require that the testator's handwriting and signature be proved by two witnesses familiar with them during probate of the will

Case Points:

Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions. Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed [as a prohibited substance]. But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. The Ninth Circuit's decision is vacated and remanded.

Module 4

How a Lawsuit Begins - Pleadings and Discovery

Owners and occupiers of land

How much of a duty they owe to visitors to their property has traditionally turned on whether the visitor was a trespasser(one who enters the land with no right to do so), a licensee(one who has a right to come onto the property for self-benefit, such as a door-to-door salesman or a neighbor dropping in uninvited), or an invitee(one invited by the owner or occupier or who enters for the benefit of the owner or occupier, such as a customer at a store) landowners have no obligation to trespassers other than to not injure them intentionally Licensees may sue for injuries caused by hidden dangers they should have been warned about because the landowner knew about the danger. Invitees may sue for injuries related to all reasonably discoverable hidden dangers.

Module 19

How to Encourage Employees to Act Ethically

The courts apply the strict scrutiny test primarily to

INTENTIONAL racial or national origin distinctions by the government

Affirmative Conduct

If Sue is carefully driving down the street and is hit by a car that runs a red light, and if as a result Sue's car is pushed into a pedestrian, Sue has not committed assault or battery. Although the pedestrian has been made apprehensive (assuming she saw the accident as it happened) and has endured harmful contact, Sue committed no affirmative act that caused the injuries. Now, if while driving down the street, Sue spotted an enemy and deliberately ran into that person in a crosswalk, she would have committed an assault and battery

Without lawful authority

If a defendant has lawful authority for detaining the plaintiff, such as when a police officer who has probable cause makes an arrest, there is no false imprisonment. In some instances, an ordinary citizen who is not a police officer can make a lawful arrest. An example occurs when someone who owns property or has authority from the owner of the property (perhaps a security guard or employee) seeks to prevent property damage or loss. Such a person may lawfully detain someone else if the guard has probable cause—a reasonable, individualized suspicion—that the other person either has or is about to steal or damage the owner's property. Even if a detention occurs within the scope of an arresting person's lawful authority, the method, means, and duration of the confinement must be reasonable.What is reasonable depends on the totality of the circumstances. Physical contact or physical force is not reasonable unless required to accomplish a lawful detention, and no more force can be legally used than is truly necessary to accomplish the detention. Intentionally causing public humiliation or invading the detainee's privacy in a way not required for accomplishing the detention is not reasonable.

Strict scrutiny

If a law or other government action discriminates against someone because of the person's ethnic group or ancestral origin government must demonstrate that the distinction is necessary to protect a compelling interest and that the distinction is narrowly tailored to discriminate no more than is absolutely necessary governmental body can almost never meet this test, and a distinction based on race or national origin will almost always be voided by the courts when challenged

How do you have a good chance of success on appeal?

If a person considering an appeal to a higher court has a good argument that a law has been misinterpreted or misapplied

Intoxication

If a person voluntarily becomes intoxicated with alcohol or drugs, the general rule is that this may negate specific intent but will not negate general intent. Voluntary intoxication is generally no defense to crimes requiring mere negligence or recklessness Involuntary intoxication, however, is generally treated as equivalent to insanity. Thus, if defendants unforeseeably became intoxicated because of an unusual reaction to prescribed medication, courts would be reluctant to hold them responsible for crimes they might commit under the influence of that medication

Unilateral mistakes

If only ONE of the parties was mistaken, rescission will not be granted unless that person can show that the other party knew, or should have known, of the mistakes at the time the contract was made

Plaintiff's claim of pretext

If the employer does produce such evidence, the plaintiff will lose unless he or she can then convince the court that the employer's asserted reason was really just a pretext (excuse for intentional discrimination) the plaintiff might be able to show for ex that the employer offered shifting and inconsistent rationales for its action

Exception to first to file ("disclose") system

If the invention is publicly disclosed by the inventor or by someone who got the invention ideas from the inventor, the inventor has one year from the data os this disclosure to file a patent application

Without consent

If the plaintiff stays in one place as an accommodation or to clear up an accusation, there is no involuntary confinement. Assume that a store clerk tells a customer: "We believe you have stolen from the cash register and have called the police." If the customer voluntarily stays in the store to give his or her side of the story, there is no false imprisonment. Both consent and lack of consent can be express or implied—that is, inferred from all of the surrounding circumstances—unless a state's law specifies that either must be express

Irrelevant evidence

If witness is asked a question that has no logical relationship to any of the disputed issues of fact, the opposing attorney may object on the basis that the answer would constitute irrelevant evidence.

Injury

In a battery, a plaintiff merely need show that he or she received a harmful or offensive bodily contact. For assault, the fear or apprehension must be of an imminent harmful or offensive contact. A threat of future harm or a threat by a defendant far away is insufficient to establish an assault. Similarly, attempts at violence that the intended victim does not know about until much later do not create apprehension of immediate harm.

Personal jurisdiction over the defendant is a requirement in so-called what cases?

In personam

Personal jurisdiction over a defendant is usually required for a lawsuit to proceed, but there is one type of case in which it is unnecessary =

In rem cases

Injury

In the case of false imprisonment, there is injury in the form of wrongfully depriving a person of his liberty--that deprivation of freedom of movement is an injury in the legal sense. The injury necessary for a valid false imprisonment claim arises automatically from the confinement, even if it is brief. A restraint of hours or days is not required for the necessary injury to occur. However, because the injury is essentially psychological in nature, it will not occur if the plaintiff is unaware of the confinement. Thus, if the plaintiff sleeps through a confinement, there would be no legal injury. But if the plaintiff knows of the confinement, monetary damages are available.

There is nearly unanimous agreement that what are morally responsible for their actions within business organizations?

Individuals

Injunction and damages

Injunction: an order prohibiting or placing limitations on the defendant's further use of the mark Damages: a recovery of money to compensate for economic loss Trademark owner can also recover the infringer's profits from selling goods or services in connection with the infringing mark

Common criminal defenses

Insanity Intoxication Mistake Self-defense Immunity

Module 26

Intentional torts

Module 37

Introduction to Contracts

Module 29

Introduction to Intellectual Property and Trademarks

Module 22

Introduction to Torts

Mediation has facilitated the resolution of a wide range of disputes:

It is common to find a clause in a contract specifying that in the event of a future dispute between the parties, they are required to submit the dispute to mediation and that if mediation fails to lead to a settlement agreement, they further agree that the dispute will then be submitted to binding arbitration.

Few defenses for discrimination

It is not illegal to discriminate on the basis on the basis of religion, sex or national origin in situations where religion, sex or national origin is a bona fide occupational qualification (BFOQ) or essential element of a specific job the law states that race or color cannot be a BFOQ most of the situations in which the BFOQ defense has been an issue have involved sex discrimination - stereotypes do not establish the BFOQ exception

Who agrees with corps not being moral agents?

John Ladd Former Chief Justice John Marshall Milton Friedman

Pendent jurisdiction

Jurisdiction by the federal court over nonfederal claims when both the federal and nonfederal claims derive from a common set of facts

Who is the judge of the facts?

Jury

Which philosopher championed deontological, or rule based ethical reasoning?

KANT

University of Texas v. KST Electric

KST used longhorn in logo that looked like UT logo. UT sured for trademark infringement, dilution and unfair competition. Final rule: if the trademarks are likely to be confused by consumers, then it is infringement. In order for it to be famous, it needs to be known worldwide.Why: consumers confuse KST to be associated with UT

If the defendant's product contains ALL of the elements, it

LITERALLY INFRINGES (even if defendant's product has one or more additional elements)

Borderline between preliminary negotiations and making an offer

Language that is so tentative or exploratory do not constitute offers requests for info do not manifest a genuine intent to contract most advertisements are not offers nor are mere price quotations

Module 42

Legal Capacity

Module 45

Legal Purpose

Insanity

M'Naghten test, which excuses defendants whose mental defects renders them incapable of appreciating the difference between right and wrong Durham rule, which simply asks whether the defendant was insane at the time of the crime and, if so, whether the crime was a product of that insanity Model Penal Code provides that a defendant "is not responsible for criminal conduct if at the time of such conduct as a result of a mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law."

Patentable subject matter

Machines, man-made materials, products, and processes can be patented One cannot patent NATURAl materials like wood, or scientific principles like E=mc2

Jeff discovers a shopping bag left on a counter next to a sink in the restroom at Macy's. Inside is a new leather jacket. There is a receipt showing that an unidentified person paid 400 cash for the jacket. If this happens in a state that follows common law rules, which of the following is true?

Macy's has a right to possess the jacket until and unless the true owner is found

McGillis v. Department of Economic Opportunity

McGillis served as an Uber driver until they revoked his access to the technology based on alleged violations of Uber's user privacy policy. He filed a claim for reemployment assistance but the Department held that he was an independent contractor. A prospective Uber driver must agree to a contract that specifies that the driver is an indpt contractor and not an employee, which explains that the driver is not entitled to unemployment benefits. Among ten factors, the extent of control is recognized by Florida courts as the most important factor in determining whether a person is an employee or indpt contractor --> judge agrees with the Department's conclusion that Uber drivers like McGillis are not employees for purposes of reemployment assistance (drivers supply their own vehicles and control when to accept trips and drivers are allowed to work for competitors)

View that corporations are not moral agents

Milton Friedman: argues that only managers and employees as individuals have moral values; no obligation to spend corporate resources correcting problems that company did not cause and inappropriate for managers to do so bc they are diverting corp resources and aren't equipped to attend to matters of common good like the govt is--> AGENTS OF CAPITAL = agents of the shareholders who own the corporation and provide its capital so their only duty is to earn as much money as possible within the limits of the law and customary ethical practices

Mistakes of what are the only cases that could grant relief?

Mistakes on fact, not judgment or opinions

Bristol-Myers Squibb Co. v. Superior Court

More than 600 plaintiffs, most of whom are not California residents, filed this civil action in a California state court against Bristol-Myers Squibb Company (BMS), asserting a variety of state-law claims based on injuries allegedly caused by a BMS drug called Plavix. Plavix is a blood thinner that helps prevent blood clots after a heart attack or stroke. BMS moved to dismiss this lawsuit for lack of personal jurisdiction. After much litigation in the California state court system, the California Supreme Court held that although California courts did not have general personal jurisdiction over BMS in this case, they could exercise specific personal jurisdiction. BMS appealed. In order for a court to exercise specific jurisdiction over a claim, there must be an "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State." the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents' claims. Our decision does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS.

Difference between arbitration and traditional trials

Most differences translate into cheaper, faster and less painful dispute resolution 1. The parties have the ability to control the entire process. They select the decision maker. They also can decide what rules and procedures to use by writing the rules that desire into their arbitration contract. Unlike litigation, the proceeding can be kept entirely private, which often may be very important to the disputants -a company may be very glad to keep most of the proceedings out of the media. 2. There is no required pretrial discovery, although the parties do frequently agree to exchange documents before the arbitration hearing. The parties can decide whether the arbitrator is required to strictly follow particular the rules evidence; most of the time, arbitrators do follow at least the general spirit of the rules of evidence even if they do not follow them strictly.

Module 23

Negligence Elements Part 1

Module 24

Negligence Elements Part 2

Are facts protected by copyright?

No

Integrated Cash Management Services v. Digital Transactions

No copyright infringement but ICM sued DTI, Newlin and Vafa for trade secret misappropriation

14th amendment

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Bill says, "I hate Steve!" Steve's boss hears the exclamation, and later fires Steve because he no longer trusts him. Steve has to go into business for himself. Tom says, "Steve stole $1000 from me when I hired him to do my taxes!" This is not true. Steve's largest client fires him. Bill has committed __________________, and Tom has committed _______________

No type of defamation; slander per se Bill has given his opinion, and has not stated something that is verifiably false, so there is no defamation even though Steve has suffered a negative consequence. Tom has lied to another person about Steve, and because it involves Steve's professional reputation, it amounts to slander per se and not just ordinary slander.

Lauren is distracted by a bee in her car, and while paying attention to the bee, she fails to notice Ron's car until it is too late to avoid a collision. Has Lauren been negligent per se?

No. Lauren has not violated a law, like a posted speed limit. She may be held liable for causing the accident, but she has not been negligent per se.

In Jan of 2020, Ron is hired by a tele network to write a screenplay as a work for hire for an upcoming episode of one of their popular programs. He delivers the work and the episode is filmed and airs later in the year. Also in 2020, Ron writes and publishes a science fiction novel. Ron passes away in 2040. Will the copyright on the screenplay or the novel expire first?

Novel because it will expire 70 yrs after his death or in 2110. The copyright on the screenplay will expire in 95 yrs bc it is a work for hire, so it expires in 2115.

Module 38

Offers

Imagine that Peter, who works for Pepsi, puts 200 cans of Pepsi into an empty vending machine on Monday morning.Later that day,Karl Klutz buys a Pepsi from the same machine and takes it out onto a second floor balcony.Karl sees Vince Victim down below, waves to him, and fumbles the Pepsi.The can describes a perfect arc and conks Vince on the head, knocking him unconscious.When he comes to, Vince feels like filing a lawsuit.Whose actions are a proximate cause of this injury?

Only Karl's actionis a proximate cause. Peter is sort of involved in all of this, in the sense that, if he had not restocked the empty machine, this accident might not have happened.But he would not be considered a proximate cause, because a jury would not say, "Ah, you should have known better -you should have foreseen that this kind of thing would happen if you did your job and put cans in the machine." Karl's actions would be a proximate cause, because a jury would say that he should have foreseen that if he dropped the can from a high place he might injure someone, and that he should have been more careful to hold onto it

In most state courts, whose name appears first?

Original plaintiff If the judgment of the trial court is appealed, the rule followed by most state courts is that the title of the case remains no matter which party is the one bringing the appeal

Module 54

Other Federal Employment Statutes

Concurrent ownership

Ownership by two or more persons at the same time

One particular form of criticism of commentary is esp likely to be fair use

Parody = type of satire that holds up the original to contempt, ridicule or scorn ex: Campbell v Acuff ROse Music Inc

Module 33

Patents

Overconfidence bias

Peoples' overconfidence in themselves can translate into overconfidence in the ethical correctness of their acts and judgments can lead people to accept their own decisions without any serious moral reflection Overconfident executives with unrealistic beliefs about their future performance are more likely to commit financial reporting fraud than other executives. Essentially, they are more likely to get themselves into predicaments where committing fraud seems the only way to deliver on their promised or previously reported performance.

Module 6

Personal Jurisdiction

Module 59

Personal Property

Supreme Court appears to apply a "middle tier" of protection that applies to distinctions based what?

Personal characteristics other than race or national origin

Degrees of larceny

Petit: covers theft of smaller amounts (for example, less than $500). Grand: worth more than 500

Sorrell v. IMS Health Inc.

Pharmaceutical manufacturers promote their drugs to doctors through a process called "detailing," which often involves a scheduled visit to a doctor's office to persuade the doctor to prescribe a particular pharmaceutical. So-called "prescriber-identifying information" enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Pharmacies receive prescriber-identifying information when processing prescriptions. Many pharmacies sell this information to "data miners," firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers whose detailers then use the reports to refine their marketing tactics Vermont's Prescription Confidentiality Law (Act 80): says can't sell info unless the prescriber consents and pharm can't use unless the prescriber consents Both Vermont data miners and an association of drug manufacturers sued, claiming that §4631(d)violated their First Amendment free speech rights. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont's statute must be subjected to heightened judicial scrutiny. Act 80 is designed to impose a specific, content-based burden on protected expression. Vermont's law imposes a burden based on the content of speech and the identity of the speaker. While the burdened speech results from an economic motive, so too does a great deal of vital expression. Vermont's law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers. The State's asserted justifications for §4631(d) come under two general headings. First, the State contends that its law is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Second, the State argues that §4631(d) is integral to the achievement of policy objectives--namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny. In any event the State offers no explanation why remedies other than content-based rules would be inadequate. Physicians can, and often do, simply decline to meet with detailers, including detailers who use prescriber-identifying information. Doctors who wish to forgo detailing altogether are free to give "No Solicitation" or "No Detailing" instructions to their office managers or to receptionists at their places of work. The defect in Vermont's law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view targeted detailing based on prescriber-identifying information as "very helpful" because it allows detailers to shape their messages. Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs. The State can express that view through its own speech. The State may not burden the speech of others in order to tilt public debate in a preferred direction --> it burdened free speech without adequate justification.

Leonard v. Pepsico

Plaintiff saw a Pepsi advertisement showing that "points" could be earned by purchasing its products and exchanging them for Pepsi merchandise. At the end of the ad, a student was shown landing a Harrier Jet at school with a subtitle that indicated the cost of the jet was 7,000,000 points. The terms of the promotion indicated that additional points could be purchased for ten cents. Plaintiff, with the assistance of several friends, accumulated enough money to "buy" the Harrier Jet and sent a check to the defendant, demanding the jet. Defendant refused and sent a letter to plaintiff explaining that the jet was not an item for purchase and referred him to the promotional brochure for the rules. Plaintiff then sued for breach of contract. Defendant filed a motion for summary judgment. The court granted the motion and stated that advertisements were not contracts or offers to sell, but rather invitations to negotiate.

When a case is remanded, what do the plaintiff and defendant hope for?

Plaintiff: that the lower court allows their case to be presented to the jury Defendant: that the higher court AFFIRMS the decision and allows the lower court's action to stand

Duration of trade secret protection

Potentially forever as long as the conditions remain applicable

What's a drawback of a loser pays system in America?

Prevent many parties from pursuing legitimate claims against a defendant because they simply could not afford to risk losing the case and paying both their own and their opponents' attorneys

The right to make a will generally exists indpt of statute but what is governed by statute?

Procedures of drafting, executing and witnessing the formal written document vary from state to state

Special circumstances of duty of care

Professionals Children Owners and occupiers of land

What territories only have 1 federal district court?

Puerto Rico Guam Virgin Islands

In disparate treatment cases, which damages can be awarded?

Punitive damages

After a long day of creating online course materials, Prentice and Bredeson have a fender-bender in the faculty parking lot. They briefly consider fighting, but they soon realize that neither is particularly good at fighting, so they decide to sue each other instead. At trial, the evidence shows that at the time of the accident, Prentice was behind the wheel eating a cheeseburger and fiddling with his radio, and that Bredeson was talking on two cell phones. The jury concludes that the wreck was 60% Bredeson's fault and 40% Prentice's fault. Bredeson will recover 40% of his losses in which type of system?

Pure comparative negligence Bredeson gets nothing in either type of modified system, because he is over half at fault. Bredeson can recover 40% of his losses in a pure comparative system. He end up with that amount because his award will be reduced by the 60% of the blame that falls on him.

Obscenity

Quality or state of a work that taken as a whole appeals to a prurient interest in sex by depicting sexual conduct in a patently offensive way and that lacks serious literary, artistic, political, or scientific value. Companies that sell extreme forms of pornography cannot expect First Amendment free speech protection.

Module 58

Real Property

Proximate causation

Reasonable foreseeability In law, if a jury determines that "you should have foreseen that,""you should have known better," and perhaps "you should have been more careful to avoid this kind of problem," you are often in much worse shape as a defendant.

Module 20

Review Exercise #2

Module 36

Securities Regulation

Bilateral offer

Seeks a return promise. "I promise to SELL you my car if you PROMISE to pay $10,000 for it."

Effective Ethics Training

Should be specific Relate to the employees' real ethical concerns Vivid Part of their job Part of poor decisions How to advocate for the right thing

To establish liability, what must there be?

Some definite relation between the parties of such a character that social policy justifies the imposition of a duty to act."

Modern reality that most business documents and communications are electronic creates special discovery problems:

Some of the communications may be relevant to the case, but many more may not be relevant, and may contain corporate secrets. It might take a team of people many months to sort through emails, strings, and attachments at a cost of tens or even hundreds of thousands of dollars, or even more.

Opinion

Sometimes a witness is asked for or volunteers information that he or she believes to be true but that is not based on the witness's personal knowledge. As a general rule, such opinion evidence, whether in oral or written form, is not legally admissible. Opinion evidence is not always excluded. On technical matters that lie outside the knowledge of ordinary jurors, it is frequently necessary that qualified experts be permitted to state their opinions as an aid to the jury's or judge's determination of what facts probably occurred. Thus a physician may give an opinion as to cause of death or as to whether a particular course of medical treatment is generally accepted within the medical community. An expert must, however, testify as to the factual basis for the opinion.

Module 5

Subject Matter Jurisdiction

Suggestive

Suggest rather than describe, some particular characteristic of the goods or services to which they apply and require consumers to exercise their imagination in order to draw a conclusion as to the nature of the goods and services Always protectable ex: Coppertone for sun tanning, Roach Motel for roach bait device, Sleekcraft for a motor boat

Fact summary

Systems and Software, Inc. (Systems) sued Barnes for violation of a non-compete employment agreement after Barnes started a consulting group whose single client was a competitor of Systems. Barnes was a consultant for Systems and Software, Inc. (Systems) and signed a non-compete agreement when he started working for Systems. The agreement prohibited Barnes from associating with any business that competed with Systems during his employment and six months after he finished working for Systems. Systems sued Barnes for violation of a non-compete employment agreement after Barnes started a consulting group whose single client was a competitor of Systems. The trial court granted judgment to Systems. Yes. The judgment of the trial court is affirmed. The terms of the non-compete agreement are enforceable because: (1) Systems served a small client base and the loss of any individual client would be significant; (2) Barnes agreed to the non-compete agreement; (3) monitoring the Barnes' goodwill serves virtually impossible. There is a three-prong test to determine whether a restraint is reasonable: (1) The restriction should not be greater than what is needed to protect the interests of the employer; (2) the restriction shouldn't place undue hardship on the employee; (3) the restriction should not injure the public interest.

What is the default setting for concurrent ownership?

Tenancy in common

Module 8

The Trial Stage

Module 49

The Uniform Commercial Code and Sale of Goods Contracts

In the federal courts, whose name always appears first?

The appellant's name

Okoli v. City of Baltimore

The decision by the U.S. Fourth Circuit Court of Appeals in Okoli v. City of Baltimore, 648 F.3d 216 (4th Cir. 2011) demonstrates that a sexual harassment victim does not have to explicitly mention "sexual harassment" when complaining about the sexual harasser in order to be protected against retaliation Okoli presents a strong claim for hostile work envt The trial court dismissed Okoli's retaliation claim. In doing so, the trial court adopted the City's characterization of Okoli's complaint against Stewart and ruled that Okoli's complaint to the Mayor was not a sexual harassment complaint, but "simply a general complaint about Stewart's unprofessional behavior." Thus, according to the trial court, because Okoli never complained about sexual harassment, Title VII did not protect her from retaliation. On appeal, the Fourth Circuit reversed the trial court's decision and reinstated Okoli's retaliation claim. In reversing the trial court, the Fourth Circuit rejected the City's argument that Okoli's complaint to the Mayor was not a sexual harassment complaint because she "did not explicitly mention sexual harassment." The appellate court found that the City "surely should have known that Okoli's complaint of 'harassment' likely encompassed sexual harassment." The court of appeals reasoned that "Okoli's description of 'unethical,' 'degrading and dehumanizing' conduct suggest severe misbehavior relating to her identity—not a mere workplace squabble." Moreover, the Fourth Circuit pointed out, "Stewart himself surely would have known that Okoli was complaining of sexual harassment."

Direct examination

The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney's client.

Mutual mistake

The general rule is that if BOTH parties are mistaken as to a material fact at the time of contracting, either party can rescind the agreement

Intent

The intent required for both assault and battery is the intent either to create an offensive contact to the plaintiff's body or to create the apprehension of it in the plaintiff. A person is presumed to intend the natural consequences of his or her actions.

Differences btwn personal and real property

The law does not formally recognize the numerous types of interest in personal property that it does for real property ordinarily a person either is the owner of an item of personal property or is not

Bailee

The one receiving the possession

Enumerated powers

The powers explicitly given to Congress in the Constitution (18 things) Article I, Section 8

Gonzales vs Raich

The question presented in this case is whether the power vested in Congress by the Commerce Clause includes the power to prohibit the local cultivation and use of marijuana if it is in compliance with California law. Respondent Monson cultivates her own marijuana, but Raich is unable to cultivate her own, and thus relies on two caregivers to provide her with locally grown marijuana at no charge.After federal agents raided Monson's house and destroyed her plants, respondents sued the U.S. Attorney General Gonzales and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. The district court ruled against respondents and the Ninth Circuit reversed.Attorney General Gonzales appealed.

Employee Drug Testing

There is no comprehensive statute in place Employees who are impaired by drugs or alcohol endanger the public and their fellow workers and cost their employers billions of dollars annually as a result of accidents, absenteeism, higher health insurance claims and lower average productivity Employers who have legitimate interests in minimizing these costs, maintaining a safe workplace and protecting themselves against liability to those injured by the actions of impaired employees Employees subjected to drug testing have an interest in preventing harm to their reputations and economic security resulting from inaccurate test results and avoiding unwarranted intrusions into their person lives Most employers take some kind of action against an employee who refuses a tests or who tests positive for illicit drugs --> legal action by employees challenging drug testing programs is becoming increasingly common If the employer is a federal, state or local govt agency, the Constitution provides a measure of protection for the legitimate privacy interests of employees Constitution does not apply to drug testing by private employers unless the testing is required by the govt but tort law does apply (privacy or defamation or negligence)

Podias v. Mairs

This case addresses whether legal responsibility can be stretched to cover the passengers as well. Defendants had both the opportunity and ability to help prevent an obviously foreseeable risk of severe and potentially fatal consequence. Defendants bear some relationship not only to the primary wrongdoer but to the incident itself. The court then examined the facts and determined that there was sufficient evidence for a jury to find defendants liable for negligence because they had aided and abetted Mairs' wrongful post-accident conduct by not acting reasonably under the circumstances to assist Podias, such as calling 911.

Immunity

Through the process of plea bargaining, defendants often agree to testify against other criminals in return for consideration at time of sentencing and perhaps immunity from prosecution of certain potential charges

Scope of protection

Title VII's Prohibition against discrimination on the basis of race or color is very broad --> protects African Americans, Hispanics, Whites or any other groups against racial discrimination prohibition against national origin is violated if an employer discriminates on the basis of a person's country or origin but sometimes not illegal for an employer to require employees to be U.S. citizens prohibition against sex discrimination, which forbids unequal treatment based on gender, makes it illegal to engage in sexual harassment; 2020 also protects workers based on sexual orientation and gender identity although religious organizations may lawfully hire some employees based on their religious beliefs, other employers cannot make distinctions for religious reason also requires an employer to make reasonable accommodations for employees' religious beliefs and practices

Statement is untrue

To amount to defamation, a statement must be untrue. Verifiability is the key to distinguishing fact from opinion. The common law placed the burden of proof on the defendant to prove the truthfulness of the statement. Truth, in other words, was a defense to a defamation claim.

Statement is published

To be defamatory, a statement must be published, or communicated, by the defendant. That is, it must be overheard or read by a third party.

Module 31

Trade Secrets

Who decides the law?

Trial judge

Examples of specialized U.S. courts

U.S. Tax Court, which hears only federal tax cases, U.S. Court of Federal Claims, which hears only claims against the U.S. government.

An application for a US patent must be filed with the _________ and specifies __________

US Patent & Trademark Office (PTO) specifies the names of the inventor or inventors and who owns the patent if the owner is someone other than the inventors --> usu an "assignee-at-issue" which is usu a corp that employed the inventors description of the invention and drawings with sufficient thoroughness and conciseness so that a person with skill in the field of tech and make the invention and put it into practice without undue experimentation applicant is not required to have actually made the invention physically, and may patents are granted even though the applicant has not created a physical, real world version of the invention

Module 48

Valid Contracts - 3 additional issues

Questions of law

What is the rule applicable to the facts?

Treating Employees Well

When employees are treated well, they tend to view their employers' authority over them as legitimate The evidence is clear that not only do employees value a just result; they also value fair procedures

Hiring Ethical people

While hiring people who are skilled, intelligent and hard-working is great, it is even better if they are honest, kind, and well-intentioned esp for LEADERS

Module 60

Wills and Estates

Negligence has been eliminated as a basis for lawsuits in at least 2 contexts:

Workers' compensation system No fault automobile statutes

Module 47

Writing Requirement: The Statute of Frauds

Ann lives in a state that has a 2-year statute of limitations and a 10-year statute of repose on negligence cases. Two bad things happen to her in 2018. First, she is involved in a car accident that is entirely the fault of Donny Driver. Immediately after the wreck, she is operated on by Sally Surgeon. Sally does a careless job of reconstructing Ann's elbow, but it is done in a way that causes no initial pain and that Ann does not even notice until 2020. Now it is 2021. Ann is frustrated by her elbow pain, and decides that she wants to sue both Donny and Sally. Can her lawsuit proceed if the defendants raise the defenses described in this section?

Yes, against Sally only. Because she was not able to detect the botched surgery until 2020, the 2-year statute of limitations was tolled and did not begin to run until 2020, so the lawsuit against Sally can proceed. It is too late to sue Donny in 2021, because it has been more than 2 years since the accident.

Alice buys a copy of the game Elf War on CD-Rom. She makes a single backup copy and gives the copy to her sister. Has Alice violated the game's copyright?

Yes. A backup copy is allowed but it cannot be given to another person.

Roger shows up at his friend Fred's house. Fred did not invite him over, but Fred is glad to see him, and the two sit down to watch a baseball game. Later, Roger uses a bathroom at Fred's house, and he receives an electrical shock from a light switch. Fred knew that the switch was badly wired, because his cousin received a shock from the same switch last week.Did Fred have a legal duty to warn Roger about the faulty switch?

Yes. Roger is a licensee. As such, Fred is obligated to warn Roger about hidden dangers on his property if Fred has actual knowledge of them.

Beyond misuse of property, a bailee who intentionally does not return the bailed property at the end of the bailment commits both

a breach of contract and the tort of conversion and is liable to the bailor for the value of the property

Long-arm statutes provide that, when the evidence shows that the defendant has had sufficient contact with the forum state, the summons is to be sent to

a central office in the forum state --> in most states, this is the secretary of state's office. The official in charge of that office then has the responsibility to send the summons to the defendant at its out-of-state address. When the nonresident defendant receives the summons, the defendant either has to respond to the merits of the complaint or, if the defendant believes that it has not had substantial contact with the forum state, it will have an attorney make a special appearance

Disaffirmance may be accomplished by

a clear indication of an intent to not be bound by the contract or if the minor simply does not perform her obligations under the contract and is sued for breach by the adult, the minor may assert her her lack of legal capacity as a defense to any liability for breaching the contract.

Congress often uses the Commerce Clause as

a constitutional foundation for enacting legislation even when its primary goal is not an economic one. Examples of this include laws aimed at protecting the environment and prohibiting employment discrimination.

General Personal Jurisdiction

a court can acquire personal jurisdiction over the nonresident defendant regardless of the nature of the dispute and regardless of whether the dispute arose from one of the specific contacts the defendant had with the forum state ex: If Don Defendant has a vacation home in Austin where he spends his summers, then a Texas court would have personal jurisdiction over Don.

In rem cases

a court is not required to have personal jurisdiction over a particular party --> over any item of property located in the forum state, whether the property is real estate or an item of tangible or intangible personal property if a trademark owner files its lawsuit in a federal court in the state where the computer server that stores the domain name is located, the court can exercise in rem jurisdiction over the domain name as an item of intangible property and transfer it to its rightful owner even if no personal jurisdiction has been obtained over the wrongdoer. ex: court actions to establish ownership to lost property, disputes involving home mortgages in default, and actions to give the government title over property that has been forfeited because it was used in connection with certain crimes such as drug dealing

Uniform Commercial Code applies to contracts primarily when

a deal calls for a sale of GOODS or tangible objects

If the defendant does not respond during this period, the court may grant

a default judgment against the defendant

Special circumstance: Negligence per se

a defendant has automatically breached his duty of care If the plaintiff can show that he or she is within the class of persons that a statute (like the posted speed limit) was meant to protect and that the harm sustained was the type the statute was meant to prevent, the issue of whether there was a duty of reasonable care and whether the defendant breached that duty is automatically resolved against the defendant and there is no question for a jury on these issues

Per stirpes distribution

a distribution of an estate in which grandchildren and great-grandchildren of the deceased inherit by representation of their parent

When someone is an owner or has title, it means that the individual owns

a fee simple interest

Denial

a formality that places the plaintiff's allegations in issue and places a burden on the plaintiff to prove the factual assertions

A necessary element of duress is

a genuine and reasonable fear on the part of the victim that he or she will be subjected to an injurious, unlawful act by not agreeing to the other party's demands ex: the threat of a criminal suit is generally held to constitute duress

Battery

a harmful or offensive bodily contact. It requires physical contact. A punch in the face, or a wound inflicted by a weapon amount to harmful bodily contacts. So would being hit by a car. Being groped can amount to a battery as an offensive bodily contact, as can being spit upon

Causation in fact

a jury can conclude from the evidence that "but for"the defendant's negligent act or failure to act, the plaintiff's harm would not have occurred

Trial Stage

a jury may be impaneled, eyewitnesses are called to the stand, evidence presented, a verdict returned, and a judgment entered in favor of one of the parties.

Air rights

a landowner's rights with respect to the air space above the surface for practical reasons, courts now hold that a landowner's air rights are not violated by airplanes flying at reasonable heights

After all the plaintiff's case has been presented, the defendant's attorney often makes

a motion for directed verdict

Special appearance

a motion made by the defendant solely for the purpose of challenging the court's personal jurisdiction --> does not give the court jurisdiction, because it does not count as an appearance.

A debt is also revived if

a part payment is made by the debtor after the statute has run these rules regarding the reviving of a debt by part payment or acknowledgment after the statute of limitations has expired do not apply to debt that have been discharged in bankruptcy

Title by adverse possession

a person can acquire ownership of real property by taking possession and simply staying in possession of it for a certain number of years Usu 20

Work for hire

a person or company hires another to make a creative work that will be owned by the purchaser, not the creator of the work

Open and notorious ownership

a person seeking to acquire land by adverse possession must control the property in a way that is conspicuous

Tippee

a person who receives a tip cannot be liable for inside trading unless they know that the tipper breached a duty in passing along the info such a breach occurs if the info is passed for personal benefit, whether monetary or reputational

Objective intent

a person's apparent intent has to do with what other ppl reasonably believe your intent to be courts frequently determine this kind

Comparative negligence

a plaintiff's damages are reduced by his or her own degree of fault If you are slightly to blame for your own injuries, you stand to lose some of your award. If you are significantly to blame, you stand to lose most or all of your award.

The typical lawsuit is commenced when

a plaintiff, normally through an attorney, files a complaint with the court having jurisdiction over the case and asks the court to issue a summons to the defendant

Uniform Commercial Code

a portion governs contracts that involve a SALE OF GOODS (tangible, movable physical objects)

Counteroffer

a proposal made by the offeree to the offeror that differs in any material respect from the terms of the original offer

Offer

a proposal made in such a way that it creates the first formal step towards creating a contract

In a hiring situation, a prima facie violation of Title VII can be established by showing that the applicant is within

a protected class, the applicant applied for a job and was qualified to perform the job, the applicant was not hired and the employer either filled the position with an applicant who was not within the protected class or continued trying to fill it

Honesty

a rational person does not have to justify telling the truth can't maintain the personal and business relationships that create order and economic wellbeing

In joint tenancy, it is characterized by

a right of survivorship, which means that the interest of a deceased joint tenant passes to the surviving joint tenants

Course of dealing

a sequence of previous conduct between the parties to a particular transaction which is fairly regarded as establishing a common basis of understanding for interpreting their expressions and other conduct

Special charge

a series of questions to the jury; each question relates to a disputed fact and asks for a yes or no answer.

As the final element of a negligence cause of action, the plaintiff must prove

a specific injury to persons or property The key idea for this final element is that you can't win a negligence case if someone almost harms you, or nearly causes your property to be damaged

If a person fails to comply with legal standards, he faces

a specific negative consequence: a loss of money, or perhaps a loss of freedom.

Despite the fact that the federal power to regulate commerce is very broad, the states also have

a substantial amount of regulatory power over commerce --> creates state-federal friction

Obedience to authority

a tendency to comply with instructions from an authority, sees themself not as a person acting in a morally accountable way but as the agent of external authority ppl are often much more concerned about the acceptability of the decision to the people to whom they are accountable than they are about the moral content of the decision itself

When an item of physical evidence is introduced in court, it is usually required that

a witness with personal knowledge about the item give sworn testimony about its authenticity

The general rule on advertising creates the potential for

abuse by unscrupulous merchants who might place advertisements, never intending to live up to their terms virtually all states have enacted consumer protection statutes which generally impose liability upon businesspersons who unfairly refuse to sell goods or services in conformity with the terms of their ads

Money or property is the separate property of one of the spouses only if it was

acquired by that person BEFORE marriage or is acquired after marriage by GIFT or INHERITANCE

Without reserve auction

act of putting an article up for sale is treated as a definite offer first bid creates a contract binding on the seller unless a higher bid is made

Estes v. Jack Eckerd Corp

activation of an anti-theft device that sounds an alarm when a customer is exiting the store provided "reasonable grounds"(probable cause)for a shopkeeper to investigate a potential shoplifting incident, even if it turned out that activation was caused by a clerk's careless failure to remove an anti-shoplifting tag from an item purchased by plaintiff.

If a US national does not register within the first 3 months, it can cover stat damages only for

acts of infringement that occur after they register and give notice to the accused

Subjective intent

actual intent in your own mind not relevant in determining whether an offer has been made

Unlike Sec 16, Sect 10 requires proof of

actual use of inside info to establish a violation and the info must be material and nonpublic

Civil law

adjust rights between or among individuals

One of the only forms of a distinction based on race that has been upheld by courts is

affirmative action

Basic elements needed to form a contract at common law are

agreement, consideration, capacity of the parties, legality of purpose are also essential to formation of a sales contract under Article 2

Covenants not to compete

agreements in which one party promises not to compete with another

Copyright law is meant to protect

all "original works or authorship"

Common law

all the rules and principles currently existing in any state, regardless of their historical origin, that result from judicial decisions in those areas of law where legislatures have not enacted comprehensive statutes

Counterclaim

allege facts in his answer that if proved, will establish a legally recognized claim against the plaintiff Either party alone might then prevail on its claim, or both may prevail; in the latter event, the amount of the smaller judgment will be subtracted from the amount of the larger judgment. Most counterclaims arise from the same set of circumstances that led to the plaintiff's claim.

The plaintiff's responsibility is to

alleges those facts that, if ultimately proved by the evidence, will establish a legally recognized claim against the defendant.

Punitive damages

allow a jury to go beyond merely compensating a plaintiff for his injuries and punish defendants who have behaved particularly badly awarding these "extra" damages which are not available in negligence or contract cases. punish wrongdoers and also serve the purpose of deterring them, and others, from punching other people

Wrong death action

allow close relatives of deceased persons to sue those whose wrongful acts have contributed to a death

Worker's compensation system

allows injured employees to recover benefits from their employers when injured on the job. The employee can recover regardless of the presence of employer fault, but he or she forfeits the right to sue the employer even if the employer has been careless. Most jurisdictions do allow an employee covered by workers' compensation to sue his or her employer in tort if injured by the employer's gross negligence (for example, if the employer has allowed several employees to be injured by the same defective machine without replacing it) or by an employer's intentional tort.

Congress enacted the Defend Trade Secrets Act

allows the owner of a trade secret to file a civil suit for damages in federal court when its trade secrets have been misappropriated so trade secrets are protected both civilly and criminally, potentially in federal court as well as state court

Family and Medical Leave Act

allows workers with at least one year of service at companies with at least 50 employees to demand unpaid time off to handle certain medical situations provides eligible employees with up to 12 weeks of unpaid leave per year employee must have worked for the employer for at least 12 months and at least 1,250 hours during the preceding year

Tiffany v. Boston Club

although a bar is likely not to be believed that the owners of "Tiffany" are responsible, the bar weakens the "Tiffany" mark by diminishing its distinctiveness and if the bar was allowed to use the mark, others would also be able to use it for unrelated goods and services, thus creating further dilution It also undermines the positive image of the "Tiffany" mark if it is no longer restricted to luxury products = disparagement or tarnishment

Adversarial refers to the

amount of control that the parties and their attorneys have over the procedure

A promise to make a gift is not the same things as

an actual gift it usually confers no rights on the promisee and cannot be enforced

If there is no will or the will does not designate a personal representative, the court will appoint

an administrator to handle the decedent's estate

Criminal action is always brought by

an agent of the government (the prosecutor, who is often but not always called the "district attorney") against the alleged wrongdoer

A defendant automatically submits to the court's personal jurisdiction if he or she makes

an appearance

Behavioral ethics

an area of study that analyzes how people actually behave when confronted with ethical dilemmas

In most complaints, the remedy requested by the plaintiff is

an award of money damages to be paid by the defendant to compensate the plaintiff for his or her loss.

ADEA provides several statutory defenses for employers

an employee may always be discharged or otherwise penalized for good cause other than age bona fide occupational qualification defense also exists bona fide seniority systems or employee benefit plans are also exempted from ADEA violation ADEA does not apply to companies below 20 employees

Any profits or losses avoided by such an insider in connection with a purchase and sale within a 6 month period is

an illegal short swing profit and must be recovered on the issuer's behalf

Where likelihood of confusion is established and a plaintiff wins a trademark infringement action, the usual remedies are

an injunction and damages

Successful plaintiffs are entitled to

an injunction and damages (can cover lost profits and royalties on the defendant's sales)

Mens rea

an intent to do wrong a defendant is not guilty unless his or her guilty act is coupled with a guilty mind juries may often presume a criminal intent on the part of the defendant based on the established facts

Life estate

an interest in real property for a person's lifetime; on that person's death, the interest will be transferred to another party not the equivalent of owning a fee simple for life --> the life tenant cannot do anything that will permanently damage the property and thus harm the future owner(s) of the property

A fee simple defeasible

an interest that may be lost if a specific event occurs

Communication of the offer

an offer has no effect until it has legally reached the offeree

Exception to revocation is

an option contract, in which an offeree gives money or something else of value in exchange for the offeror's promise that an offer will be kept open for a set length of time can be useful when proposals are complex and a company wants time to evaluate the deal more

Negotiated settlement

an out of court settlement between the parties themselves there is no third party decision maker or referee - there is not replacement for a judge and jury Instead, the two sides and their lawyers work out a deal, which often boils down to something like, "We agree to drop our lawsuit against you if you agree to pay us $50,000."

A gift occurs when

an owner of property (the donor) voluntarily transfers ownership of the property to another (the donee) without receiving any consideration in return

Assault

any act that creates a reasonable apprehension of an imminent battery. It is correct to say that one commits an assault when he makes another afraid that he or she is about to be the victim of a battery. This is true whether or nota battery eventually occurs.

Corporate Insiders

any corp employee with access to material inside info, not just officers and directors Secretaries and custodians may be corporate insiders

Sixth amendment

any individual facing potential incarceration has the right to consult an attorney and to have one provided if he or she cannot afford one rights to be informed of the nature of the accusation, to confront witnesses against them, and to call witnesses on their own behalf right to a "speedy and public trial," and importantly, there is a right to trial by an impartial jury that applies in cases involving "serious" criminal charges

Usage of trade

any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question

At common law, a person who proved libel was able to recover damages without

any proof of special damages or proof of any specific loss

Trade secret

any type of knowledge that is generally not known and is not readily available through legal means, if the knowledge gives its owner a competitive advantage over rivals who do not have the knowledge ex: detailed customer info, manufacturing processes, chemical formulas, operating and pricing policies, marketing strategies and secret recipes

Misrepresentation of a material fact

any word or conduct that causes the innocent person to reach an erroneous conclusion of fact must be a statement of fact must be material (important) usually statements as to what will happen in the future are not statements of fact and therefore not fraudulent statements of opinion are also not statements of fact

Mailbox rule

applies to delayed, nonreal time communication about acceptances and creates 2 standards 1. Acceptances "count" as soon as they are sent so long as the offeree uses the same means to communicate (or one that is faster or more reliable) 2. Rejections and revocations are not effective until received by the other side

Intermediate scrutiny

applies to gender-based distinctions government must prove that the classification substantially advances an important government interest stricter than rational basis most gender-based distinctions will be found to violate the equal protection clause Possible applications of intermediate scrutiny include laws that discriminate based on whether a person is a U. S. citizen, and based on age

Employment at will doctrine

applies to the majority of American workers where companies can fire workers at any time for any reason unless the company would violate a specific law in doing so but a company doesn't need a "good reason" to fire someone

Estate planning is

applying the law of property, trusts, wills, future interests, insurance and taxation to the ordering of one's affairs, keeping in mind the possibility of retirement and the certainty of death

UT's longhorn silhouette is what type of mark

arbitrary of fanciful

Defendants

are accused of wrongdoing - on defense

Low level state courts: General Trial courts

are courts of "general jurisdiction"; they are empowered to hear all cases except those expressly assigned by statute to the courts of limited jurisdiction. one or more such courts normally exist in every county of every state.

Course of performance

arises out of repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other

Void

as far as the law is concerned, these never existed at all agreements surrounding illegal things are void void contract is never enforced

When rights are transferred, they are

assigned

A contract made between a minor and an adult can be disaffirmed by the minor

at any time before he or she becomes an adult or within a reasonable time after reaching adulthood

Racketeer Influenced and Corrupt Organizations Act (RICO)

attack organized crime, especially its infiltration into legitimate business provides for both criminal penalties and private civil suits for damages Fortunately, most of the criminal prosecutions brought under RICO have attacked the more traditional manifestations of organized crime. Prosecutors have secured RICO criminal convictions in cases involving marijuana smuggling, kickbacks to judges, extortion of "protection money" by police officers, loan sharking, gambling, and the like.

Rules of evidence

attempt to ensure that the evidence presented in a court of law is relevant to the issues and is as accurate and reliable as possible

Legislative power

authority to create new laws given to Congress

Executive Branch

authority to enforce the laws topped by President

Not only does free speech include the right to express oneself, but it also includes the right to

avoid expressing opinions that we do not agree with.

Compensatory damages

awarded to make up for harm actually done

Bailor has certain basic duties with respect to the condition of the bailed property

bailor must not knowingly deliver property containing a hidden defect that is likely to cause injury constitutes negligence if so

Statues of repose

bar lawsuits no matter what after an extended period of time 10 years and 15 years are common

U.S. District Courts

basic trial courts where most federal cases originate

In a criminal action it is necessary that the government prove its case

beyond a reasonable doubt

Conformity Bias

bias toward conforming to the actions and standards that we perceive to be accepted by our peers

Many types of acts such as battery constitute

both criminal wrongs and actionable torts

Joint authorship

both have the rights associated with copyright ownership a single join author can exercise these rights of ownership, such as granting licenses to use the copyrighted work, without the consent of the other join author(s)

Vegetation

both natural vegetation and cultivated vegetation are considered to be real property in a sale of land, the vegetation passes to the buyer of the land unless expressly excluded from the sale

To be accepted by a court as a severe or pervasive, the offensive conduct must qualify

both subjectively (from the victim's perspective) and objectively (from the perspective of a reasonable person in the victim's position) it is not enough to demonstrate only one or the other

Critical diff between civil and criminal actions lies in the

burden of proof --> jurors in a criminal case must be convinced of the defendant's guilt beyond a reasonable doubt

The plaintiff bears the overall

burden of proof.

Defendant's rebuttal

burden shifts to the employer to bring forth evidence of a legitimate, nondiscriminatory reason for plaintiff's rejection --> can introduce evidence relating to matters such as the applicant's past experience and work record, letters of recommendation or the superior qualifications of the person actually hired in a case based on an allegedly discriminatory discharge, the employer might overcome the plaintiff's prima facie case by showing evidence of the plaintiff's poor performance, absenteeism, insubordination, etc

Trademarks often have immense value to

businesses and also allow consumers to know the source of things they purchase

Third methods of termination is recognized

by passage of time if an offer does not state a time when it will expire, it will terminate upon the passage of a reasonable period of time (depends on the circumstances of each case)

Delivery

can also be accomplished by transferring something that gives effective control over the property, such as keys to a car

Unilateral offer

can be accepted only by the performance of a particular act only turned into a unilateral contract when something is performed

Economic duress

can be grounds for the rescission of a contract in exceptional situations as when there is a threat to do economic harm unless the party with the weaker power agrees to a contract and the threatened party has little or no realistic choice but to agree

If a contract between a minor and an adult is fully executed, the minor

can still disaffirm the contract and get back whatever he or she has given up when performing the contract

The principal must have

capacity - must be at least 18 years old and sober agent does not need to have capacity

Common laws are frequently referred to as

case law, judge-made law or unwritten law

Tolled

case will not begin to expire until the plaintiff knows or should know of the injury

After both sides have presented their cases, and after each lawyer has had a chance to make a closing statement, what happens?

cases are submitted to the jury for deliberations

After proving the existence and breach of a duty of due care, the plaintiff in a negligence action must demonstrate that the defendant's breach of duty was both

cause in fact and a proximate cause of the plaintiff's harm causation in fact by itself is insufficient to impose liability on a careless defendant.

If questioning indicates that a particular person probably would not be capable of making an impartial decision, the judge will excuse the person by granting a

challenge for cause ex: has a business association with one of the parties or attorneys, a financial interest in the case, or a clear bias toward one of the parties. no preset limit on how many can be removed based on

KST's intent

chose that design to reflect the owner's life experience with cattle and longhorns owners were however aware of its similarity to UT

Voidable contracts

circumstances in which one of the parties to a contract has the legal right to withdraw from it at a later time without liability ex: minors' contracts

The most common types of controversies are

civil actions

Federal Question Cases

civil case in which the plaintiff's claim arises from the U.S. Constitution or a federal statute It is common for a plaintiff to assert two or more legal claims based on the same set of factual circumstances. If one of these claims raises a federal question and thereby creates federal subject matter jurisdiction, the federal court also has subject matter jurisdiction over any other claim arising out of the same facts, even if the other claim is based on state law rather than federal law = PENDENT JURISDICTION

Tort

civil wrong in which a defendant fails to meet a legal duty to another in a way that causes harm over a physical injury, or damage to her property or reputation, or over emotional distress.

Illegal harassment can be committed by

co-workers and not just by managers

Older contract law is comprised of

common law principles that courts have established one case a time through long decades and centuries --> used to decide everything that matters in many contracts lawsuits

if two people or businesses make a contract that involves non-goods, and if there is a dispute that leads to a lawsuit, then

common law principles would be relevant.

So when a legal idea comes from a decision in a court case, it is part of the

common law.

Commerce Clause was intended to make the US a

common market, with the many economic advantages of trade that is unhindered by state boundaries

Security

commonly thought of as the stock issued by corporations and the shares of common and preferred stock issued by corporations constitute one major type of security = equity securities

Most property acquired by either spouse during marriage is

community property, which includes the salary, wages or other incomes earned by either spouse, income earned from community property and property bought with the proceeds of or income from community property

Poor success on appeal?

complaint that "the jury believed the wrong witness" and made an error determining the facts

The rules for a court's acquisition of personal jurisdiction over a defendant vary somewhat from state to state, but the rules all have the same objective:

compliance with the U.S. constitutional requirement of procedural due process

Americans with Disabilities Act (ADA)

comprehensive protection against discrimination to persons with disabilities includes provisions dealing not only with discrimination in employment, but also with problems of discrimination and access in public transportation, public accommodations and communications

Criminal law

comprised of those statues in which a state or the federal govt prohibits specified kinds of conduct and which additionally provide for the imposition of fines or imprisonment on persons convicted of violating them

Virtue ethics

concentrates on the actor attempting to become a virtuous person in developing honesty, integrity, truthfulness, reliability

A person legally becomes an agent when

consent and capacity have been established

Peppercorn rule

consideration either exists or it doesn't—courts do not inquire into whether there has been enough consideration to support a contract. courts believe that it is not their job to save litigants from poor bargains they have made

Real property

consists of land and things permanently attached to land

Subject matter jurisdiction

consists of the power to hear a particular type of case provisions in the state constitution specify which types of cases are within the subject matter jurisdiction of which types of courts U.S. Constitution specifies in general terms the kinds of cases that are within the subject matter jurisdiction of the federal courts, and federal statutes provide more detail.

Framing

context matters --> a simple reframing of a question can produce a totally different answer from the same respondent

Two examples of subjects dominated by common laws

contracts and torts

A duty to render assistance may either be

contractual, relational or transactional

Specific intent crimes

conviction is appropriate only if the defendant had the intent to commit the exact forbidden act charged. ex: murder

Charge

core of the instructions and gives the jury the legal framework for performing its job

Insiders, their tippees and temporary insiders all owe a fiduciary duty to the

corporation in whose shares they trade

Judicial review

courts have the final say in deciding whether the Constitution has been violated by a congressional law or executive action

Federal courts have jurisdiction over what kind of cases

criminal cases in which a violation of a federal criminal statute is alleged

After each of the plaintiff's witnesses testifies, the defendant's attorney has an opportunity to conduct a

cross-examination of that witness

Plaintiffs are usually seeking

damages

Libel

defamation that is written or in some other fixed form, like a video; considered more damaging because it is more permanent

Defense

defeats the plaintiff's claim even if the plaintiff is able to prove those facts that establish all the elements on his/her claim ex: self defense

Intentional tort

defendant caused harm intentionally or recklessly

General intent

defendant had the general intent to commit a wrongful act even though he or she did not intend to bring about the specific result ex: if a defendant became very drunk and went on a rampage, killing a man with a gun, he may be found guilty of second degree murder even though he was so drunk he did not know he had a gun. This is an example of general intent

Negligence

defendant is accused of failing to use reasonable care at the time a defendant suffers an injury or a loss

Strict liability crimes

defendants can be found guilty absent intent or even careless behavior ex: selling liquor to minors, violating traffic rules and violating pure food and drug laws

Success in escaping liability under a contract for being intoxicated or high depends on

degree of intoxication if they can't understand the nature and effect of the agreement, disaffirmance is allowed

Loyalty

degree of trust and confidence contribute to econ efficiency and social order

When duties are transferred, they are

delegated

Delegator

delegates their duties to the assignee

Personal service of summons

delivery of formal notice of the lawsuit to the defendant in person while the defendant is physically within the forum state Whoever attempts to deliver a summons must make a sworn statement to the court as to whether the attempt was successful or unsuccessful if a defendant lives in the same state as a court is located in, summons can sometimes be served by mail or by leaving the summons at a regular place of business.

Bailee's right to use

depends on the express terms fo the contract or the general purposes of the bailment ex: if the contract is for storage, the bailee usu has no right to use the property while it is in his or her possession but if the bailee is renting the property, he or she has the right to use it in a normal manner

The most common discovery tools recognized by these new rules, are

depositions interrogatories requests for production of documents. A party must make a good faith effort to comply with the other party's legitimate discovery request --> penalties may include the assessment of discovery costs, attorney's fees, or monetary penalties and in cases of flagrant disregard of legitimate discovery requests, the court can even dismiss a claim or defense or grant a default judgment against the offending party

Generic

describe an entire class of goods trademark protection is always denied if a potential trademark is deemed to be generic

For intentional torts cases, plaintiffs must demonstrate

different kinds of things to win different kinds of cases

Modified comparative negligence

disallows the plaintiff recovering any damages if her percentage contribution to her harm passes a certain point more common type of modified comparative damage statute allows a plaintiff to recover the percentage of damages for which defendant is responsible even if plaintiff is 50% at fault, but bars recover if the plaintiff's actions caused more than 50%of the harm

The key to insider trading liability is the

disclose or abstain rule

Lost property

discovered under circumstances indicating that it was not placed in that location voluntarily by the owner right to possess the item until and unless the true owner could be found, and he or she was legally required to take reasonable steps to locate the true owner

The purpose of cross examination is to

discredit or cast doubt on the witness's testimony

de facto discrimination

discrimination that is the result not of law but rather of tradition and habit If a distinction or classification is neutral on its face but happens to have a disproportionate impact on a particular group, strict scrutiny usually does not apply

In most states, general trial courts are called

district or superior courts

Arbitration

does feature a replacement for a judge and jury. the parties involved in a real dispute that might otherwise be settle in court sign a contract --> selects an arbitrator who is given legal authority to reach a binding decision parties typically submit very brief pleadings, and then present evidence and arguments to the arbitrator who makes a decision which is legally enforceable like a court judgment

The fifth amendment also protects defendants from

double jeopardy = being tried twice for the same offense when a jury has found a defendant "not guilty".

If the descendants are all of one class, they will take per capita

each getting an equal share

Individual liability

each particular defendant who is to be charged with responsibility must be proceeding negligently but mere presence is not enough to charge one with responsibility

Separate property

each spouse has complete ownership of his or her separate property

Community property

each spouse owns an undivided one-half interest in all community property, an interest which passes to his or her heirs upon death

"Commerce" includes almost anything remotely related to an

economic activity, including manufacturing, advertising, contracting, sales and sales financing, transportation, capital-raising, and so on. Because of the Supreme Court's broad interpretation of what counts as interstate commerce, few businesses can escape the reach of the federal government.

Where there is a right to jury trial, a jury will be impaneled if

either party formally requests one

A legislative body is comprised of

elected representatives.

Class Action Fairness Act

eliminated the requirement of complete diversity of citizenship for most class action lawsuits where the matter in controversy exceeds $5 million purpose: to eliminate perceived forum shopping (choosing to file in states or even counties perceived to be friendly to plaintiffs) by plaintiffs' attorneys in large class action and other mass litigation suits

Regularity of employment

employees tend to have at least somewhat normal hours Indpt contractors tend to set their own hours - may have a deadline to meet but how and when they complete the job leading up to the deadline is up to them

Employer liability is esp impt in Title VII cases bc only the

employer can be held monetarily liable; if you bring a sexual harassment lawsuit, you are suing your company and not the person who has been harassing you (targeting a harasser directly in court requires a tort lawsuit)

Principal

employer of an agent

Employers vs independent contractor

employers are often found responsible for the negligent actions of their employees but are not generally responsible for the negligence of independent contractors

Negligence

employers are often held legally responsible for the negligence of their employees but when a contractor commits negligence, the wronged person can usually sue only the contractors and not the employer of the contractor

Writ of execution

empowers a law enforcement official to seize defendant's nonexempt property and sell it at auction until enough money is raised to satisfy the judgment

If the plaintiff survives the appellate process or if no appeal is ever made, the plaintiff may still have to worry about

enforcing the judgment

Fred logs into his TD Ameritrade account and buys one share of Apple stock. He is delighted that he now owns 1/4330000000th of the company. Fred's share of Apple stock is

equity security bc he has purchased a very small ownership interest in Apple

If the intestate has died leaving no heirs or next of kin whatsoever ,the estate will pass to the state by a process called

escheat

Provisional application

esp beneficial for individuals, small business and nonprofits like universities bc it allows for the deferral of many patenting costs for up to a year gives the applicant an all impt filing date but provides extra time to do things like seek additional funding and further explore market potential if the applicant files a regular application within one year and does not make any material change in the description, any resulting patent traces it filing date back to the filing of the provisional so having as early a filing date as possible is impt for many reasons

Fraud

essence of it is deception, the intentional misleading of one person by another

Freehold estates

estates that can legally exist for an indefinite period of time

If the products are dissimilar and unrelated,

even identical marks may not cause confusion

"Good faith" requirement

every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement acting with honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade

Default judgment

everything in the complaint is accepted by a court as true and proven and the defendant loses the case without having a chance to present her side of the story in court. defendant gives up the right to contest liability the only issue to be determined is the amount of money damages to which the plaintiff is entitled, or the appropriateness of some other remedy the plaintiff may be seeking.

Equity securities

evidence an ownership interest in the corporation

Debt security

ex: the bond, note, or debenture holders are creditors rather than owners of a corporation; have no voice in corp affairs but are entitled to receive regular interest payments according to the terms of the bond or note

Jury

examines the evidence and determines what it thinks actually happened decides whether the evidence is sufficient to prove the plaintiff's asserted facts by a preponderance of the evidence

Bailee's right to compensation

except for bailments in which the bailee is renting property for the purpose of using it, bailee normally has the right to some form of compensation for the safekeeping of the property

Businesses and others try to avoid the potential liability of negligence through the use of

exculpatory clauses that purport to excuse them ex: "not liable for losses" such clauses are generally held to be contrary to public policy and thus are often unenforceable against the injured party

Bailment contract can be either

express or implied and in most cases is not legally required to be in writing advisable to have the bailment contract in writing if the value of the bailed property is substantial

The bailee's rights depends almost entirely on the _______ and normally involve

express or implied terms of the parties' contract 1. possession 2. use 3. compensation

Symbolic expression

expression by nonverbal means ex: wearing black armbands or picketing somewhat more likely to be upheld than a limitation on verbal expression, simply because the conduct that constitutes symbolic expression is somewhat more likely to interfere substantially with some important public interest.

Securities Exchange Act of 1934

extended federal regulation and the trading of those securities

Trial courts must settle questions of both

fact and law

Perjured testimony

false testimony given under oath

Each of these 11 appellate courts also hears appeals from the rulings of

federal administrative agencies

Laws may be said to be either

federal or state law

A lot of the knowledge gained is in the form of

figuring out what does NOT work or "negative know-how" and such knowledge is also protectable as a trade secret

If the court denies the defendant's motion to dismiss, the defendant will

file an answer.

Motion to dismiss

files such a motion if he or she believes that the plaintiff does not have a winning claim even if all the allegations in the complaint are true sometimes the plaintiff will be given an opportunity to amend the complaint if the motion to dismiss is granted --> if the problem can't be corrected by amendment, the court will dismiss the plaintiff's case

When federal jurisdiction exists because of diversity of citizenship, the plaintiff has a choice of

filing in a federal court. The plaintiff may also choose to file in a state court. For example, if the alternative is to file the case in a state where the attorney normally does not practice, the attorney may be unfamiliar with the procedures of that state's courts and thus may be more comfortable in a federal court where the procedures are basically the same as in other federal courts. A plaintiff's lawyer might also believe that the judgment in the case is likely to be larger if the case is filed in a federal court, or that the chances of winning are improved by filing there.

Registration

filling out a form along with 2 copies of a published work or one copy of an unpublished work and modest fee work must be registered within 3 months after first publication in order for the copyright owner to be able to receive so called statutory damages in an infringement lawsuit (damages that the court can award even without proof of actual economic loss within a range of 750 to 30000 per infringed work)

Finding statutes usually place obligations and give rights to the

finder, regardless of who owns or controls the land where property is found

US has switched from a first to invent system to a

first to file system

Criminal law

focuses on the individual's relationship to society

Contracts of adhesion

formed when one side (usu one having greatly superior bargaining power relative to the other) prepares the terms of a proposed contract and presents it to the other party on a take it or leave it basis ex: apartment leases, hospital admission forms, sales contracts form new car dealers

Embezzlement

fraudulent conversion of the property of another by one who has lawful possession of it ex: attorneys who receive funds from a client for payment of a settlement but later decide to spend the money on themselves or himself instead

The right of association is a component of

free speech The groups and organizations we join often provide us with one of our most effective means of expressing our beliefs and opinions. Thus, a government limitation on our ability to associate with groups of our choice is generally a limitation on free speech.

Offers for unilateral contracts occur much less

frequently than bilateral contracts

Fact finding body

function is to consider evidence and determine to the best of its ability what really happened during the key events that led to the trial in the first place

But some gifts generate gift tax liability

gift tax applies to some large transfers of wealth made by living people and has a minimum rate of 40% you can give away as much as 15,000 per year in 2020 to as many people as you wish without generating any gift tax liability you can give away an unlimited amount to support someone's education or medical needs, so long as you make payments directly to a university, health care provider, or similar institution you can give an unlimited amount to a spouse or to a charity or nonprofit org

One of the keys to cutting estate taxes can be to

give away some assets BEFORE death

Good mediators tend to have both

good people skills and a solid understanding of the law, and they use these skills to help craft reasonable settlement proposals

In general, the UCC governs contracts for

goods

Highest level of protection in scrutiny applies to

governmental distinctions based on race or national origin, and those that affect fundamental liberties

Criminal suits are always brought by the

govt whose law has allegedly been violated

Group dynamics

groups of employees often behave differently than any single employee would behave in isolation bc the dynamics of the group transcend individual reason and autonomy First, because the action is motivated by corporate purposes rather than personal reasons, participating individuals may not view their conduct as "really their own." If they do not associate the action with themselves as human beings, they are less likely to apply their own personal moral standards to it. Second, a member of a group may feel that there is "safety in numbers." As the number of individual participants in group action increases, each member's feeling of anonymity may also increase. Even if a person does recognize and feel somewhat responsible for the moral consequences of his group's proposed action, he nevertheless may go along with a plan because he doubts that he personally will ever be called upon to defend it Third, formal lines of authority and accountability within the organization may be fuzzy, thus increasing the chances that no single person really feels responsible. When people do not feel responsible, they are less likely to act responsibly Fourth, communication among individuals within the decision-making group may be less than perfect, and thus different individuals or subgroups may be acting on the basis of somewhat diff facts and assumptions To counteract that effect, society can visit moral responsibility (and perhaps legal liability) upon the firm, hoping that its managers will act to minimize wrongdoing that could injure the firm

After a person has been adjudicated insane, what is appointed?

guardian --> any contract made by the insane person rather than by the guardian is absolutely void

Offers/proposals

happens before a contract is fully made

Children

have a lower than usual duty of care than do adults

The most practical result of the rule extending a landowner's property rights to the center of the earth is that

he or she owns the minerals beneath the surface these minerals in the ground can also be owned separately so a landowner might sell only the mineral rights or sell the rest of the land and expressly retain the mineral rights

High level state court: Appellate Courts

hear appeals from judgments entered by the lower courts decide legal questions; they do not hear testimony of witnesses or otherwise entertain new evidence one or more

UCC's firm offer rule

holds merchants to their signed promises to keep offers open for a specified time of less than 3 months' duration even in the absence of consideration

Descriptive

identify a characteristic of a product and are sometimes protectable but often denied True descriptive terms ex: Vision Center and company names that use a geographic designation (East Coast Comics) or a person's name (J.S. Penny) can be trademarked only if they acquire a SECONDARY MEANING (a substantial percentage of a population associates the term with a particular company) ex: Dell

Trade secret protection weakness

if a competitor discovers the info through indpt research, then the competitor can also make use of it

If the harassment is committed by a co-worker, the employer can be liable only

if a supervisor knows or should know about the harassment and fails to take prompt action to stop the harassment and prevent it from recurring

Innocent misrepresentation

if all the elements of fraud are present except that the person making the misstatement honestly and reasonably believed the statement to be true

Control

if an employer hired a worker and retains a significant amount of control over his activities, the worker is probably an employee; usu in a chain of command independent contractors are hired to do a job or achieve a particular result and then left to decide on the method and manner for achieving that result

Auctions

if conducted openly and fairly, auctions are an efficient way of determining a reasonable price in transactions btwn willing sellers and buyers

Abandoned property

if found under circumstances indicating either that it was left by someone who did not want it any more or was left so long ago that the former owner almost certainly was no longer living the first person taking possession become the owner, unless that person was trespassing

Apparent authority

if the agent acts outside the scope of his express or implied authority, the principal is normally not responsible for the transaction however if the principal by his or hew conduct has led reasonable third parties to believe that the agent has such authority, the principal may be responsible bc the agent may have apparent authority

Specific Personal Jurisdiction

if the nonresident defendant has intentionally engaged in a specific act in the forum state such as going into the state and committing a tort or making a contract with someone in the forum state. In such a case, though, the dispute must arise out of that specific contact. ex: If Don Defendant rarely visits Texas, but the last time he did come to the state, he crashed his rental car into Paul Plaintiff's car, then specific personal jurisdiction would exist. Te same would be true if Don's California-based business sold and shipped an item to a customer in Texas who was injured by the product.

Burden of proof

if the plaintiff does not ultimately produce evidence that convinces the jury (or judge if there is no jury) of the correctness of the allegations in the complaint, the plaintiff loses (the defendant is not required to prove anything)

Exception to the general rule on independent contractors

if the task for which the independent contractor was hired is ultrahazardous, or inherently dangerous, the employer will be held automatically responsible for harm to third parties caused by the dangerous character of the work based on the notion of STRICT LIABILITY

Groupthink

impairment of individual decision making; usually much more extreme

Carol and Debby bring separate lawsuits under their 14th Amendment right to Equal Protection. Carol challenges a law that she claims makes distinctions based on gender. Debby challenges a law that she says makes distinctions based on the income level of residents of her state. If the government wishes to keep the challenged laws in place, it will have to convince the court the law is necessary to further a(n) ______________ state interest in Carol's lawsuit and a(n) ______________ state interest in Debby's lawsuit.

important rational

Any willful violation of any provision of the antifraud provisions of 1934 Act, including those banning inside trading, subjects the violator to penalties of

imprisonment up to 20 years and/or a fine of up to 10 million for individuals Corps can be fined up to 25 million

Knowability

in a democracy, it is assumed that the great majority of its citizens are going to obey its laws voluntarily which requires some knowledge of the rules necessary for persons who need legal advice to have access to experts on the rules—lawyers. equally necessary that the law be in such form that lawyers can determine their clients' positions with reasonable certainty to recommend the most advantageous courses of action.

Long arm statute

in many states, it specifies that personal jurisdiction can be acquired over a nonresident defendant who has "done business" or committed a "tort" (that is, wrongful conduct for which civil liability can be imposed) within the forum state other states, the statute simply provides that jurisdiction can be acquired in any circumstances in which the defendant's prior contact with the state is sufficient to comply with the fairness requirement of due process QUESTION OF SUBSTANTIAL CONTACT

Assignment

in which a copyright owner transfers ownership of a copyright to an "assignee" the rights of the assignee are less than those of an original owner bc the creator or their heirs can terminate the assingment at any point between 35-40 yrs after the assignment was executed

In personam cases

in which the plaintiff seeks a judgment that will be legally binding against the defendant (whether an individual, corporation, government agency, or other entity).

Civil actions

in which the plaintiffs are seeking to enforce private obligations or duties against the defendants

A promise to answer for the debt of another must be

in writing to be enforceable

Land

includes not only the surface of the earth but also everything above and beneath it

Fair Use Defense

includes such use by reproduction in copies, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) scholarship, or research, is not an infringement of copyright

Purpose of affirmative action programs is

increasing diversity, helping minority-owned businesses become established by enabling them to break into government contract work, and assisting minorities in overcoming the effects of past discrimination the government must meet stringent requirements to justify the policies

To accept offers, offerees must clearly

indicate that they definitely want to agree to the proposed deal

Formal will

indicates that the will has been prepared and executed in compliance with the state's law of wills = the state's probate code

State Law

individual states decide on the rules that will apply within their own borders

Fifth amendment

individuals cannot be held to answer for major federal criminal charges unless they have been indicted by a grand jury

Undue influence

influence is undue where one party so dominates the will of the other that the latter's free will is destroyed ex: one person relies more on a younger person for advice 1. Show that he or she was induced to enter into a particular contract by virtue of the dominant party's power and influence, rather than as the result of exercising his or her own volition 2. the dominant party used this power to take advantage of him or her

Undue influence

influence which deprives the person of free agency and destroys freedom of his will will should not be admitted if it is the product of fraud, duress or undue influence

2 types of torts

intentional and negligence

Judicial

interprets laws Supreme Court sits atop courts decide what laws mean and what situations they apply to

Federal law

is created by the national govt, that is by the govt of the U.S. ex: right to free speech, Congress passing a statute like the Civil Rights Act

Personal property

is moveable

Central problem for UT of proving famousness is that

it has niche market fame

Continuous possession

it must be reasonably continuous for the required period of time the court will take into account the nature of the land and the type of use being made of it

Having employees sign written confidentiality, nondisclosure agreements is a good idea bc

it will contribute to the conclusion that the employer maintained reasonable security measures when there is a close question on that issue

Each state and the national govt maintains

its own system of courts

Preponderance of the evidence

judge or jury deciding the case must be more convinced by the plaintiff's evidence than by the defendant's

An important check that the courts exercise on Congress is

judicial review

Beyond a reasonable doubt

jurors must be significantly more convinced that a defendant committed a wrong before they will find the defendant guilty in a criminal case

Most cases that reach trial are decided by a

jury The use of juries drawn randomly from the local population is a unique feature of litigation inherited from the English system

Examples of limited jurisdiction courts

justice of the peace courts, municipal courts, traffic courts, and domestic relations courts (handling divorce, custody, and child support cases).

A corporation is recognized as a

legal entity that is capable of owning property, making contracts, being a party to legal proceedings but can act only THROUGH human beings

Duty of care

legal obligation to every person we can reasonably foresee might be injured by our carelessness do not owe a legal duty of care to those people who might claim to be injured due to our actions, but who are not reasonably foreseeable to us

Statutory law

legal rules that have been formally adopted by legislative bodies rather than by the courts

Contract

legally enforceable agreement ordered to pay money damages to plaintiff formed only if someone actually does something

Finding statutes

legislation regulating the possession and ownership of found property typically require that the finder of an item of personal property turn it over to a designated govt authority within a certain period of time, such as 10 days some states designate a local authority for receipt and custody of the item, such as the city police, county sheriff, or county clerk others designate a state authority such as the state police depending on the statute, either the finder or the custodial authority must then take specified steps to locate the true owner and if the prior owner does not appear and establish ownership within a stated period of time, such as one year, most statutes find that the finder acquires actual ownership of the property

Caveat emptor

let the buyer beware --> buyers had the responsibility to look out for themselves in making a purchase the traditional rule stated that mere silence does not constitute fraud but today, caveat emptor has been subjected to many exceptions

Vicarious liability

liability imposed not bc of one's own wrong but solely bc of the wrong of one's subordinate

Patents

lock down EXCLUSIVE rights to make use of certain types of info for defined periods of time stronger than trade secret protection bc it solves the produce independently problem 20 yr exclusive right to make, use or sell the patented invention but it is NOT renewable and the item will go into the public domain

Signature may be satisfied by a

longhand signature, initial, letterhead, company's trademark or a name of email

Federal law entered the picture and Congress passed the Economic Espionage Act (EEA)

made it a federal crime to steal trade secrets punishes standard trade secret misappropriation but also contains enhanced penalties when the trade secret theft constitutes economic espionage bc it is meant to benefit foreign entities

A motion for directed verdict

makes the same assertion as a motion for summary judgment, that the plaintiff's evidence on one or more of the required elements of the case is either nonexistent or so weak that there is no genuine issue of disputed fact If the motion is granted, the defendant wins without having to present any evidence. If the defendant's motion for directed verdict is denied, the defendant then presents its case as discussed earlier.

Most commonly, a person acquires ownership of personal property by

making payment

Self defense

may justify acts of violence that otherwise would be criminal Brown v. United States, 256 U.S. 335 (1921), the general rule permits only that degree of force reasonable under the circumstances Deadly force can be used if the defendant has a reasonable belief that imminent death or grievous bodily injury will otherwise result

Capacity

means "competence" in the eyes of the law, or the legal ability to perform a particular act

Those with substantial mental impairments include those who are

mentally handicapped, severely senile or mentally ill

Agent

merely a person employed to act on behalf of another

If a trademark holder sues another company, the key standard is not

merely whether the two words, phrases, symbols or designs look the same, sound the same or are spelled the same

Plaintiff in civil suit usually requests

money damages as compensation

Express authority

most straightforward type and is directly granted by the principal to the agent

After trial by ambush proceedings, new rules were created so that

much of the evidence that each party will rely on in proving his or her version of the facts is fully disclosed to the other after the pleadings are complete but before a case comes to trial during the discovery stage.

General requirements of a will

must be written and signed by the testator in most states, the signing must be witnessed by two competent persons who themselves must sign as witnesses in the presence of each other and of the testator the witnesses do not read or know the contents of the will the will can name an executor and can also name a guardian for minor children

Agents have many specific obligations to principals

must obey clear instructions from a principal must use reasonable care must account for all money that is received or paid out on behalf of the principal must promptly notify principals of anything they learn that is relevant to the principal's interests must also be loyal by not competing with their principals and by protecting confidential information

A restriction on commercial speech will be valid if the government can show that it is

necessary to further a substantial governmental interest, does further that governmental interest, and does not restrict commercial speech to any greater degree than is necessary to advance the governmental interest The Court followed earlier precedents in holding that money can be speech and stressed that campaign donations did not lose their free speech attributes just because they were made by corporations.

The prospective group of jurors must be pared down to the number

needed to hear the case, usu 12 (some states need only 6)

The UCC states that unlike at the common law, an agreement modifying a sales contract

needs no consideration to be binding parties are bound to their promises to modify an existing contract and another technical defense is eliminated

Contracts the result after a certain amount of bargaining are

negotiated contracts

A large percentage of claims filed in court are resolved by a

negotiated settlement

Mediators

neutral third parties and have no power to render a binding decision, are often very useful in breaking an impasse and helping the two sides reach an out of court settlement

Common law rule imposes what?

no independent duty of rescue at all" and relieves a bystander from any obligation to provide affirmative aid or emergency assistance, even if the bystander has the ability to help but those under no pre-existing duty may nevertheless be liable if they CHOOSE to volunteer emergency assistance for another but do so negligently.

Fifth amendment mandates that

no person be deprived of life, liberty, or property without due process of law no one should be convicted of violating a statute that is unduly vague due process violation for a prosecutor intentionally to suppress material evidence favorable to the accused --> Brady v. Maryland

Misappropriators

nonsiders who misappropriate confidential inside info for their own purposes their "disclose or abstain" obligation rests on a fiduciary duty owed to the SOURCE of their info

Novel

not currently in use and not detailed in print

False pretenses

obtaining title to someone else's property by knowingly or recklessly making a false representation of existing material fact that is intended to and does defraud the victim into parting with his or her property an injury to title, not mere possession

Transactions covered include those

occurring on the stock exchanges, in over the counter sales through stockbrokers, or even in privately negotiated sales any person connected with the transaction is regulated, not only insiders

Duress

occurs when a party to a contract compels the other to accept an offer by committing a wrongful act or making a wrongful threat (robs the person of free will)

Harassment

of an employee because of his or her race, sex, religion or national origin is a particular form of disparate treatment discrimination under Title VII

When a defendant receives a copy of the plaintiff's complaint, he or she will

often either file a motion to dismiss or an answer.

Civil lawsuit is brought by

one individual or company (the plaintiff) against another (the defendant)

Voidable contract

one of the parties, the side in the weakened position, has the right to withdraw from the agreements at a later time without liability

Article 2 applies to all sales contracts but a few provisions do require

one or both of the parties to be merchants

When a patent owner sues for infringement, he is alleging that the defendant infringed

one or more of the CLAIMS in the patent

Latent/hidden defect

one that a simple or casual inspection by a prospective purchaser ordinarily would not reveal

Valid contract

one that has required elements that is enforceable against both parties

Ancillary covenant

one that is a subsidiary or smaller part of a larger agreement ex: contract calling for the sale of a business where the contract contains a promise by the seller of the business not to engage in the same type of business in a specified geog areas for a certain time ex: common in partnership agreements

Most states have enacted special statutes providing that verbal leases of what length are valid?

one year's duration or less

Most courts will enforce exculpatory clauses where they involve

only recreational activities or other activities that are completely optional on the part of the participant and thus do not affect the public interest

Writ of garnishment

orders a third party holding property belonging to the defendant to deliver the property to the custody of the court In most cases, the third party is a bank, stock broker, or other entity holding funds or securities belonging to the defendant may also be issued against a third party who owes a debt to the defendant, ordering the third party to pay the debt to the plaintiff instead of the defendant

Most common type of contract involving donee beneficiaries is

ordinary life insurance policy

incidential beneficiary

ordinary third party

The aim of wise estate planning is not merely to dispose of one's estate at death but to

organize resources during life in order to provide for the present and future wellbeing of one's family

Doing on harm

our actions have both expected and unexpected effects on others, positive or negative negative effects: those that damage some legit interest of another person; ppl have legit interests in their physical, economic, and emotional wellbeing as well as in their property, privacy and reputation

General charge

outlines and explains the relevant legal principles for the jury and it asks them to decide the relevant facts and reach a verdict either for the plaintiff or for the defendant. (Criminal case: guilty or acquittal)

The expression of present intent relates to

ownership if the evidence indicates that the current owner merely intends to transfer present custody or the right to use the property, there is no gift

Life insurance

ownership can be arranged that the proceeds will not become part of the insured's estate and therefore won't be taxed can be a good means of providing liquid funds so that forced sales of other property to pay estate taxes or debts can be avoided for the average wage earner, life insurance is the major means of providing security for the family

Prenuptial agreements

parties about to be married to each other expressly spell out their interests in the other's properties must usually be in writing to be enforceable

Consent is commonly established when

parties sign an employment contract, but there is no need to be so formal - words or action can also indicate consent

Summary judgment

party is arguing to the judge that the evidence produced during discovery makes it so clear that the moving party is legally entitled to prevail that a trial would be a waste of time

The other appellate court is the U.S. Court of Appeals for the Federal Circuit, which hears all appeals from

patent applicants whose applications were rejected by the U.S. Patent & Trademark Office, all appeals from patent infringement cases from U.S. District Courts, and appeals from the International Trade Commission and the federal Merit Systems Protection Board. Appeals from judg

Role morality

people may adopt different moralities for different roles they play in society

A promisee does not incur a detriment by

performing, or promising to perform an act that he or she was under a preexisting duty to perform (bc of a law or previously made contract that has not yet been carried out)

Peremptory challenges

permit the attorney to have a prospective juror removed without stating any specific reason for doing so very flexible, but they cannot be used for discriminatory reasons

Request for production of documents

permits a party to gain access to those kinds of evidence such as business records, letters, and hospital bills that are in the possession of the other party

Decedent

person who dies

Testator

person who makes a will

Temporary insiders

person who receive confidential corp info for a corp purpose and with the expectation that it will be kept confidential but then use it for insider trading ex: attorneys, accountants, and invest bankers hire temporarily by a corp

Executor

personal representative to carry out the provisions of the will

f the defendant has not made an appearance, the plaintiff must see to it that the court acquires personal jurisdiction. One method is with a

personal service of summons

Total value of intangible assets substantially exceeds the value of

physical assets

Under the ADA, a person has a disability if he or she has

physical or mental impairment that substantially affects one or more of the major life activities of that person (caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and participating in social relationships and activities) include visual, speech and hearing impairments; cerebral palsy; HIV infection; cancer; diseases of the heart; diabetes; epilepsy; emotional illness; serious learning disabilities; drug addiction; and alcoholism (current user is not protected) also prohibits discrimination against a person who either has a record of an impairment or is regarded as having an impairment

Mislaid property

placed in that location voluntarily by the owner and then later forgotten the owner of the property where the item was found gained the right to possess the item until and unless the true owner could be found

Disparate impact

plaintiff begins by arguing that a company policy, rule or practice impacts groups differently

Diversity of Citizenship Cases

plaintiffs and defendants live in different states --> federal courts act as neutral ground, so that neither party has a "home field advantage" 1. citizenship in a state for federal jurisdiction purposes means U.S. citizenship plus residency in that state and also exists when one party is a citizen of a state in the United States and the other is a citizen of another nation 2. the amount in controversy must be greater than $75,000.

Intestacy statutes specify the

portion of a decedent's estate that will be taken by his or her lawful, surviving spouse if there is one (variation from state to state) typically the surviving souse takes 1/2 or 1/3 of the estate if there are children or grandchildren or else they take the entire if there are children, the number of children or grand will determine the share to pass on to the surviving spouse in a community property state, the surviving spouse owns 1/2 of it and the remaining is subject to intestacy rules if no will exists

Advertisements are usually considered to be

preliminary negotiations rather the customer is making an offer to purchase, which the store can accept or reject

The amount of consideration does not matter, only its

presence or absence is relevant the two sides do not need to receive something of equal value or even somewhat similar value for consideration to exist

Plaintiffs win civil cases by

presenting evidence that tends to show that their complaints are valid - preponderance of the evidence

In a criminal action, even a successful prosecution will not usually

produce a dime for the victim but will result in a punishment such as a fine, imprisonment or both

So for there to be either type of infringement, all of the elements in the patent owner's asserted patent claim, there must be in the defendant's

product, machine, process or composition of matter -- all elements must be either identical or substantially equivalent

Age Discrimination in Employment Act (ADEA)

prohibits discrimination based on age against anyone age 40 and over requires that an employee (plaintiff) prove that the employee's age was a motivating factor in an adverse employment decision only the age of the victim of discrimination is relevant

Title VII of the 1964 Civil Rights Act

prohibits discrimination in various settings, including housing, public accommodations, and education deals specifically with discrimination in employment and applies to employers, employment agencies and labor unions state and local govts are also within the definition of employers and most instances, the fed govt's employment practices are also covered applies only to employers that have 15 or more employees

Civil Rights Act of 1964

prohibits discrimination on the basis of race, color, religion, sex or national origin

Bilateral contracts

promise for a promise

Utilitarianism

promoting the greatest good for the greatest number

Community property

property obtained during the course of the marriage

The stronger the mark, the greater the

protection it receives because the greater the likelihood that consumers will confuse

Fourth amendment

protects people against unreasonable searches and seizures requiring that search warrants not be issued absent "probable cause"

Nonobviousness

provides that an inventor is not entitled to a patent on an invention if hypothetical ordinarily skilled practitioners in the art would have viewed the invention as representing only a trivial, obvious advance if there is evidence to show that X's invention produced a result that was surprising or that was contrary to conventional teachings in the relevant area of tech, it very strongly points toward nonobviousness

Exceptions: An ad may be an offer in situations in whichh the

quantity is clearly limited, or the number of possible persons who can accept is clearly limited and other language is used indicating that the seller is making a promise to sell to the first ones who respond in the way called for in the advertisement advertisements of rewards are usu treated by the courts as being offers ex: advertised reward for a missing dog

What happens with each prospective juror?

questioned in an effort to make sure that the jury will be as impartial as possible conducted by the plaintiff and defendant's attorneys, by a judge, or by all three, depending on the practice in the particular court system

Appellate courts rule only on

questions of law

Keeping commitments

rational person is not likely to feel it necessary to defend his actions helps maintain social and commercial relationships

Common law governs contracts regarding

real estate and services

In the absence of a specific directive given by the employer, an act usually is in the scope of employment if it is

reasonably necessary to accomplish a goal that has been expressly directed

No fault automobile statutes

reduce litigation by allowing persons who suffer only minor injuries in car accidents to recover only from their own insurance company.

Genericide

refers to a trademark losing its protection because a trademark becomes generic over time ex: Aspirin

Appearance

refers to taking any formal steps to defend a case --> once this has happened the trial court has personal jurisdiction and the defendant cannot thereafter challenge the existence of such jurisdiction.

Jurisdiction

refers to the legal power of a govt body or official to take some type of action with respect to courts, jurisdiction means the power to hear and decide a case and render a judgment that is legally binding on the parties

The US copyright office registers copyrights but

registration is not required for copyright protection

Commercial speech is protected only if it

relates to a lawful activity and if it is not misleading Although most commercial speech is protected by the First Amendment, it receives a lower level of protection than noncommercial speech

Reliance on misstatement

reliance does not exist if the one accused of fraud can prove that the other party actually knew the true facts before making the contract or if the victim's reliance was not reasonable under the circumstances

Certainty

remain stable into the foreseeable future why courts are generally reluctant to overturn principles that have been part of the law for any appreciable length of time most changes result from a series of modifications of existing principles rather than from an abrupt reversal of them.

Statute of frauds

required certain types of contracts to be in writing in order to be enforceable sometimes allows some parties to evade obligations that they have willingly undertaken

Disclose or abstain rule

requires that certain persons either disclose material nonpublic info that they possess or abstain from trading in the relevant company's stock until that info becomes public equalizes access to impt info affecting the value of securities (equal access is the goal, not equal info)

Respondent superior

requires that the superior respond for the wrongs of an agent

Once fraud is established, the defrauded party always has the right to

rescind the contract = remedy of RESCISSION designed to restore the parties to their original positions in some cases, the defrauded party may wish to keep the consideration and bring suit for damages (usu the diff between the actual value received and the value it would have been)

Free speech rights generally apply when the govt tries to

restrict speech and other forms of expression generally does not offer protections against private people and organizations restricting speech we may freely criticize public officials and the laws of our government without fear of government retribution

The bailor's most important rights are to have the bailed property

returned at the end of the bailment period, to have the bailee use due care in protecting the property and to have the bailee use the property in conformity with the express of implied terms of the bailment contract if the purpose of the bailment is use of the property by the bailee, the bailor has the right to compensation under the express or implied terms of the contract

If a trial court does grant a summary judgment motion, the losing party can always seek

review in an appellate court

Offers are terminated if they are

revoked, rejected of if they lapse sometimes terminated by operation of law

If the plaintiff chooses state court, the defendant may have a

right of removal in any federal question case and in diversity of citizenship cases, except in the situation where the plaintiff filed the suit in the state where the defendant is a citizen.

Deontological ethics

rule based analysis where one's behavior is morally defensible only if everyone else could do the same thing without interfering with the optimal functioning of an organized society treat everyone as you wish to be treated says we should never lie

Reasonableness

rules have to appear reasonable to the great majority of the people if they are going to be obeyed for long. allied with the idea of reasonableness is the requirement that the rules reflect, and adapt to, changing views of morality and justice

Law

rules that must be followed

Hearsay

second-hand information is usually not as reliable as first-hand information so hearsay is not admissible in court

The delegator remains

secondary liable for performance of those duties unless the contract specifically releases the original party with whom it had contracted and agrees that the delegatee will be substituted for the delegator as the only one who owes the obligation, the delegator is no longer obligated on the contract = novation

Most controversial part of the fifth amendment is its protection against

self-incrimination can include matters of document production and oral testimony ex: Miranda v. Arizona

Implied authority

serves to fill in gaps where the principal has not spoken specifically on a subject but where it is reasonable to assume that the principal would have granted such authority if he or she had thought about it unless the principal has indicated otherwise, his or her agent has implied authority to do those things that are reasonably and customarily necessary to enable that person to accomplish the overall purpose of the agency

Statute of limitations

set absolute deadlines for filing lawsuits. If you fail to beat the expiration date for filing, your claim will be forever barred. Typical statute of limitations for tort cases is 2 years Occasionally, a plaintiff can get a sort of extension on normal deadlines set by statues of limitations

Moral minimum

set of general standards that constitute the ethical minimum necessary for the functioning of civilization compliance with such standards requires no defense or justification reason to expect a justification for NOT complying with these standards tends to destroy the social and econ relationships that cause a society to function effectively

The complaint sets forth with ______ and ends with _______.

sets forth the plaintiff's version of the facts and ends with a request for a certain remedy based on these facts

Whether such likelihood exists is a question of fact and determined by such factors as

similarity of design of the marks, similarity of product, proof of confusion among actual buyers, and marketing surveys of prospective purchasers showing an appreciable misassociation of the defendant's mark with the plaintiff's product

Quid pro quo

situation in which continued employment, a favorable review, promotion or some other tangible job benefit is explicitly or implicitly conditioned upon an employee's positive response to a requested sexual favor usu ppl with control over job benefits is the only one capable of committing this form evidence must convince a court that the sexual advances were unwelcome when the unwelcome request causes the target to believe that a negative response will lead to adverse job-related consequences and when the evidence shows that a reasonable person would also believe this

Incrementalism

slippery slope or "boiling frog" syndrome unethical behavior occurs when people unconsciously lower their bar over time through small changes in the ethicality of behavior

In enacting criminal statues, a legislature is saying that certain activities are

so inherently inimical to the public good that they constitute wrongs against organized society as a whole.

Flexibility

societal changes occur with accelerating rapidity and presents new legal changes that must be resolved without undue delay some of these problems require solutions that are more political than legal in nature but they can only be settled through the judicial process ex: invention of airplanes required limited the unlimited rights to airspace

Fixture

something that has been attached to the land in a relatively permanent fashion ex: house viewed as real property so title to them passes to the buyer of real property unless expressly excluded

Implied contracts

sometimes inferred by courts after examining the conduct of the parties

Slander, however, required proof of

special damages Generally, a plaintiff had to prove some sort of economic loss stemming from the damage to reputation. In a slander case, it is not enough to be, in a general way, humiliated or embarrassed. You must show that you have lost something definable, perhaps a job or a business client.

In some situations a contract may grant a decree of

specific performance, ordering the defendant to actually perform the terms of the contract

Slander

spoken defamation

Nonancillary covenants

stand alone and do not protect any existing legally recognized interest ex: father promising to pay for the son's promise to not engage in medical practice usu unreasonable restraint and illegal

Ethics

standards that should be followed in a moral sense, but which are not attached to a specific penalty.

Federal districts are defined by

state lines, with each state having at least one district.

Robbery

stealing from people or in their presence by use of force or threat of force aggravated robbery = use of a weapon to escalate the crime

Damages

sum of money roughly equivalent to the loss suffered as a result of the defendant's wrong

At or near the end of discovery, one part or the other (sometimes both) may file a motion for

summary judgment as to one or more of the issues in the lawsuit

Appellate courts are usually but not always called the

supreme court (the more populous states a layer of one or more intermediate appellate courts is interposed between the trial courts and the supreme court)

Once an offer is made, it can either be

terminated or accepted

Summary judgment

terminates a case before it ever goes to trial appropriately granted if the evidence in the case so clearly indicates that factually one side or the other is entitled to prevail that a trial would be a waste of time

Reasonable definiteness

terms of an agreement have to be definite enough so that a court can determine whether both parties lived up to their promises in the event that a question of breach of contract arises communication must cover all major matters affecting a proposed transaction in order to constitute an offer

A will is valid only if the testator had

testamentary capacity at the time of its making must have attained a specific minimum age of usu 18 must possess the mental capacity to dispose of the property intelligently

Deposition

testimony of a witness that is taken outside of court given under oath, and both parties to the case must be notified so that they can be present when the testimony is given and thus have the opportunity to cross-examine the witness

The interest of a tenant in common passes to

that person's heir according to his or her will who then become tenants in common with surviving co-owner(s)

To prove copyright infringement, the owner must first prove

that the defendant had access to the plaintiff's copyrighted work and then must prove that the defendant's work is substantially similar to the plaintiff's work

First federal securities law was

the Securities Act of 1933, which regulated the initial issuance of securities by companies frequently called the "Truth in Securities" law requires full disclosure by companies wishing to issue and sell stock to the public by mandating that a registration statement be filled with the Securities and Exchange Commission punishes fraud and deceit

Appeals from judgments of the U.S. courts of appeal can be taken to

the U.S. Supreme Court

Battle of the forms provision

the UCC states that a contract is formed if the offeree's primary intent is to accept an offer even if the offeree's form does not match the offeror's form in all particulars no party is allowed to unfairly surprise the other with contract provisions hidden in fine print

Plaintiffs

the accusers - start lawsuits, are complaining, on offense

With reserve auction

the act of putting a particular item up for auction indicates only a willingness to consider offers to purchase bid is treated as an offer which may be accepted bidders are free to withdraw their bids prior to that event and seller is free to withdraw the item from sale if no bids are high as the seller desired what auctions are presumed to be unless explicitly said otherwise

Regardless of the type of charge used, there will be a question at the end of the charge that asks the jury to determine

the amount of damages it wishes to award if the jury rules for the plaintiff. Juries sometimes fail to reach a verdict, and a case must be presented again to a new jury. But usually, a jury returns a verdict and a judge enters a formal judgment. Occasionally, judges will refuse to recognize an irrational verdict, but generally, a losing party that wants to keep fighting must appeal the case to a higher court.

Remanded

the case is returned to the trial court with instructions for further proceedings

Rational Basis Test

the challenged distinction or classification must merely be shown to have a "rational basis" merely has to be some legitimate government interest - not even a particularly good one - and the distinction must have some rational relationship with that interest

Filing an answer

the complaint and answer make up the initial pleadings of a case, the main purpose of which is to permit the court and the parties to determine the actual points at issue

In general, an exculpatory clause will not be enforceable to relieve one of liability for negligence if

the contract involves a matter that substantially affects the public interest - involves goods/services that are basic to daily life

A copyright owner who is a US national cannot file suit in federal court for copyright infringement unless

the copyright has been registered

Personal jurisdiction

the court's power over the parties to the case in a civil lawsuit, the question is whether a court has authority over the defendant (The plaintiff submits to the court's personal jurisdiction just by filing the case)

Next key in a successful case after establishing duty of care is to show that

the defendant breached or failed to live up to his duty of care

A breach occurs when

the defendant fails to exercise the same care as a reasonable person in the circumstances Usually, whether or not a defendant's conduct met the required standard of care will be examined by a jury in light of all the circumstances that existed at the time of the incident that led to the lawsuit. Emergency conditions, for example, may be considered.

The clock starts ticking for the defendant to respond when

the defendant receives the summons and complaint

The plaintiff trademark owner has the burden of proving that

the defendant's mark is so similar to the plaintiff's that the defendant's use will produce a LIKELIHOOD OF CONFUSION in buyers' minds as to the true origin of the goods or services

An employer sometimes can be held liable even when an employee has deviated from authorized authority which depends on

the degree and foreseeability of the deviation

Bailment

the delivery of possession of personal property from one person to another under an agreement by which the latter is obligated to return the property to the former or to deliver it to a third party ex: taking a dress to a dry cleaner, lending a car to a friend, and the delivering of goods to a railroad for shipment

Real property consists of

the earth's surface and the soil, rocks and minerals beneath the surface; the right to use the area in the air above the surface up to a reasonable height; vegetation; buildings such as houses and other structures permanently attached to the land in a relatively permanent fashion; growing crops and trees, being physically attached to the ground, are also generally considered to be real property when sold in conjunction with the land (but not when sold separately with the land)

A plaintiff is not required to show that a defendant should have foreseen

the exact type or severity of harm that plaintiff ended up suffering, but only that defendant should have foreseen that his or her conduct was likely to lead to the general kind of harm that plaintiff incurred.

In addition to protecting the speech of individuals, the First Amendment has also been interpreted to protect

the expressions of corporations and other organizations.

Summary judgments are more common for which party?

the fact that the plaintiff has the burden of proof means that summary judgments for the defendant are more common than for the plaintiff --> if a defendant files a motion for summary judgment, it will be granted unless the plaintiff has presented at least enough evidence during discovery to create a genuine issue on all the required elements of its claim

The U.S. Court of Appeals for the District of Columbia hears appeals from

the federal district court located in the District, as well as appeals from rulings of federal administrative agencies.

If protected trademarks are deemed to be "famous," trademark rights can sometimes be asserted even when

the goods or services are not similar and there is no likelihood of confusion

Patents are granted by

the govt

A trademark must be granted to you by

the govt When applying for federal registration of a trademark with the US Patent & Trademark Office, the owner must establish that it has a protectable mark

Consideration

the idea that a contract must be a bargained-for exchange something for nothing agreements are not typically contracts

Utility

the invention must achieve a useful result low threshold and will almost always be fulfilled

If two witnesses contradict each other,

the jury decides which is telling the truth or at least more of the truth

Current term for a copyright runs for

the lifetime of the creator of a protected work + 70 yrs might be passed down to younger family members in a will and benefit generations of an artist or author's family before it finally expires

ICM retains a protectable trade secret in its product

the manner in which its generic utility programs interact is not generally known outside of ICM and the limited info is not available in the promotional literature ICM has taken measures to protect the secrecy by doors locked, nondisclosure agreements the architecture can also not be readily duplicated without the secret info of their years of research

Reasonable geographic restriction on the effectiveness of the obligation not to compete cannot exceed

the market area of the business being protected

Consequentialist theories

the moral rightness of an action is determined solely by its results

Why is joint tenancy more difficult to create?

the owner would have to refer expressly to the right of survivorship in addition to using the terms joint tenancy traditionally could only if the joint tenants received their interests at the same time and in the same document and only if their fractional interests were equal but some states have removed that requirement

Estate

the particular set of rights owned in a given situation in real property

UCC provides that a contract is made if

the parties clearly intend one to exist and there is a reasonably certain basis for giving an appropriate remedy resort may be made to "gap-filler" sections of Article 2 to provide some terms the parties omit

Express contract

the parties involved have fully and specifically stated the terms of the deal

Adversarial system

the parties themselves (acting through their attorneys) research the law and find and develop the evidence decide which issue are going to be presented, which legal arguments are going to be made, which evidence should be gathered and presented, and how the evidence is to be introduced in court the judge normally takes no action unless a party specifically requests it --> judge still has the duty to exercise ultimate supervisory authority over the entire process ex: if one party's attorney attempts to introduce testimony or physical evidence that is not legally admissible, the judge usually will not exclude the evidence unless the other party's attorney makes an objection to the inclusion of that evidence, citing a specific legal reason.

Assignor

the party that transfers rights to another

Obligee

the party to the original contract to whom the performance is owed

Delegatee

the party to whom the duties are transferred

In the American system, who pays the attorney fees?

the party usually pays all of its own attorney fees

Knowledge of Falsity

the person making the statement knew or should have known that it was false at the time it was made if a person makes a statement with a reckless disregard for the truth

Asignee

the person to whom the rights are assigned

Bailor

the person transferring possession

A court in a Title VII disparate treatment case first seeks to determine whether

the plaintiff has established a basic, or PRIMA FACIE case a prima facie case is established when the EEOC or an individual plaintiff proves facts that permit an inference that intentional discrimination on the basis of race, national origin, gender or religion was the employer's motivation for a negative action

If the claim of discrimination is based on a firing rather than a refusal to hire, a prima facie case can be established by showing that

the plaintiff is within a protected class, the plaintiff was performing the job satisfactorily, the plaintiff was fired and the plaintiff's work was then assigned to someone who was not within the protected class

Typical case

the plaintiff must initially prove that the employment practice in question has an adverse impact on the protected group of which the plaintiff is a member or to a statistical comparison of the composition of the employer's work force with the composition of the relevant labor pool if the plaintiff has established his or her basic claim, the employer can seek to defend itself by proving that the policy being challenged amounts to a BUSINESS NECESSITY

Pure comparative negligence

the plaintiff recovers the percentage of his damages that were caused by the defendant, even if plaintiff's negligence accounts for a greater portion of his harm than did the defendant's negligence.

Defendant's work must be virtually identical to the plaintiff's in cases where

the plaintiff's copyrighted work has only a so-called thin copyright, where there are relatively few copyrightable elements relative to uncopyrightable often the case with a work that is highly functional in nature with the main objective being to achieve something in an effective and efficient way

Search warrant will be issued by a judge if

the police have produced evidence that would lead a reasonably prudent person to believe there is a substantial likelihood that the defendant is guilty of the offense the police charge.

Hostile possession

the possession must be nonconsensual so the tenant clearly communicated to the landlord that the tenant was claiming ownership

Actual possession

the possessor must have exercised some type of physical control over the land that indicates a claim of ownership ex: living on it, farming it, erecting buildings, construction of a fence

An agent ordinarily can act for the principal in such a way as to make

the principal legally responsible only when the agent has a valid type of authority to act that way

Common unilateral offer

the promise of a seller of property to pay a real estate agent a commission if the agent finds a buyer for it

Obligor

the remaining person who now has obligations to the assignee most contractual rights can be assigned without the obligor's consent

For a legal system to function properly, particularly within a democratic government such as ours, it must command

the respect of the great majority of people governed by it.

Restrictive covenants in employment contracts are reasonable if

the restriction is reasonably necessary to protect the employer if the restriction is not unreasonably excessive as the the employee geographical restraints in employment contracts are more likely to be set aside by the courts than those in contracts where businesses are being sold courts will be stricter with time restraints in employment contracts than in sale of business contracts

The most important contracts that must be in writing are those calling for

the sale of an interest in real estate or "real property"

Article 2 of the Uniform Commercial Code deals with

the sale of goods sale = the passing of the title from the seller to the buyer for a price (doe snot apply. to leases or to arrangements for things like the storage of furniture in a warehouse bc only temporary ownership is transferred)

Appellant

the side making the appeal

Self serving bias

the tendency we have to gather information, process information, and even remember information in such a manner as to advance our self interest and support our pre existing views ppl have a psych need to see themselves as good and reasonable

Principals are obligated to honor

the terms of employment contracts must also reimburse expenses an agent incurs while working on behalf of the principal and they must indemnify agents when agents incur liability while acting within the scope of their authority

All states have statutes of limitations limiting

the time a creditor has to sue a debtor after the debt becomes due In all states, a new promise to pay the debt, IF IN WRITING is enforceable despite the absence of consideration --> the debt is said to have been REVIVED

In most states where decedents leave no descendants,

their parents will take the estate, with brothers and sisters (known as collaterals) taking if the parents are not living in other jurisdictions, brothers and sisters share with the parents

Oral contracts are just as enforceable as written contracts if

their terms can be established in court.

if two people or businesses make a contract that involves selling goods, and if there is a dispute that leads to a lawsuit, then

then UCC rules will govern the case and will be used to determine what should happen

If defendant's product contains ONE OR MORE elements that are similar but not identical,

there is no literal infringement but there could possibly be infringement under the doctrine or equivalents --> whether it performs substantially the same function in substantially the same way to achieve the same result

If the insubordinate is deemed to be an employee, the employer is liable to

third parties for those torts committed by the employee in the scope of his or her employment

Contracts usu do not create any rights for

third parties or those outside of a contract outsiders usu can't go to court to enforce deals that they did not make, even if they stand to gain something if the contract is completed

Federal courts are part of the federal govt which is a govt of limited powers under our Constitution so even the most impt federal trial courts (district courts) have power to hear only

those cases that have been specifically placed within their jurisdiction by the Constitution and federal statutory enactments

Civil laws

those laws that spell out the rights and duties existing among individuals, business firms, and sometimes even government agencies ex: contract law, tort law, and sales law

Fighting words

threats, epithets, false alarms, and the like, which by their nature are likely to lead to violence and significant risks of physical injuries to people

Cognitive dissonance

to avoid uncomfortable psychological inconsistency, once people have made decisions or taken positions, they will cognitively screen information and tend to reject that which undermines their decisions or contradicts their decisions

Defendants generally seek

to escape responsibility for the misdeeds of which plaintiffs accuse them

Even if a person is protected by the ADA, an employer is under no obligation

to hire an applicant unless the person is qualified to do the job but if the individual would be qualified if the employer makes a reasonable accommodation for the person's impairment, then the person is viewed be the law as being qualified

Purpose of Equal Protection Clause

to prohibit the government from making arbitrary and unreasonable distinctions among persons

Information can be protected as either a

trade secret or with a patent but a company can't protect the same info with BOTH trade secret is relatively weaker but can be much longer lasting patent is stronger but expires after a defined amount of time

If a company's engineers believe that a product can't be reverse engineered, its attorneys will likely suggest that

trade secret protection be preferable

Through securities regulation, the federal govt and to a lesser degree the states, regulate

trading on the stock exchanges, protect the interest of shareholders and attempt to protect the interests of investors and preserve the integrity of US capital markets

Mortgage

transfer of an interest in land by a borrower to a creditor as security for a debt and is an interest that is contingent upon the debtor's default

Often rights and duties can be ____________ to third parties?

transferred

Will

transforms a person's wishes about the disposition of his or her property into a valid, legal instrument

Burglary

trespassory breaking and entering of the dwelling house of another during the nighttime with intent to commit a felony Aggravated burglary = with use of a weapon

Larceny

trespassory taking away of the personal property of another with wrongful intent permanently to deprive that person of the use of the property generally does not include trees or personal services but would include computer programs and trade secrets

Very low level state courts: Courts of Limited Jurisdiction

trial courts that have limited authority and can hear only certain specific types of cases. bc there are so many of them, these courts hear most cases that come to trial

If a majority concludes that there is probable cause to believe that the defendant has committed a crime alleged, the grand jury issues a

true bill

In an intentional tort case, the jury could award

two diff types of cash damages

Bait and switch advertising statutes

typically impose liability upon advertisers who lure readers into the store by offering good deals on products but then either have an insufficient quantity for an expected reasonable demand or focus all their sales efforts at convincing the shoppers to buy more expensive items that were not advertised

In a situation where the law requires a contract to be in writing, any contract that does not meet that requirement is an

unenforceable contract

Mail fraud

use of the mails to defraud or swindle involve use of the mails or telephones to make false representations to sell products or securities

Wire fraud

use of the telephone, telegraph, radio, or television to defraud or swindle involve use of the mails or telephones to make false representations to sell products or securities

Sec 10 make sit unlawful to

use or employ any manipulative of deceptive device of such rules and regulations 1. to employ any device, scheme or artifice to defraud 2. to make an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or 3. to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security

Inquisitorial system

used in European nations and in most other parts of the world that did not inherit the English legal system the trial (or panel) judge has much more control over the process, often will have the authority to decide which issues will be addressed with the parties impt input, usually in charge of the investigation and gathering of evidence (have investigators who answer directly to them), make rulings and taking various actions on their own initiative variations in procedural details just like in adversarial

Promissory estoppel

used in circumstances in which a strict application of consideration rules will bring about results that are grossly unfair to the promisee --> used to enforce the promise even if it is not supported by consideration ex: promises to donate large sums to charities

Injury

usu an economic loss as a result of the misrepresentation usu the easiest of the fraud elements to prove

How is mediation similar to arbitration?

usually voluntary and controlled by the parties similar in that its end goal is to settle disputes outside of court

For a patent to be valid, the invention itself must have

utility involve patentable subject matter be novel be nonobvious

The total ownership of a parcel of real property can be divided into

various sub-interests any sub-interest is treated as an interest in land and a contract concerning it must be in writing ex: real estate mortgages are interests in land and must be in writing

Specialized U.S. Courts

very specialized subject matter jurisdiction

Sometimes the voidable contract option to set aside the agreement is available to a

victim of fraud or threat of violence or those "unduly influenced" --> no genuine assent in these cases

Examples of general trial courts

virtually all important cases involving contract law, criminal law, and corporation law, for example, originate in the general trial courts.

Illegal contracts are generally

void and unenforceable

If at the time the contract was made, the person was so impaired that she was incapable of understanding the nature and effect of the particular agreement, then the contract is

voidable

The preliminary questioning of prospective jurors is called the

voir dire examination "to speak the truth"

Holders of equity securities are normally entitled to

vote on impt corporate matters and to receive dividends as their share of the corporate profits

Many states allow garnishment of

wages In such a case, a court orders the defendant's employer to pay a specified percentage of the defendant's wages or salary to the plaintiff every week or month until the judgment is fully paid

Unenforceable Contract

was valid at the time it was made but is later rendered unenforceable because of the application of some special rule of law too much time elapsed

Executory contract

what a contract is until both parties have fully performed their obligations

Questions of fact

what happened?

Reasonableness

when a business is being sold, the interest to be protected relates to the goodwill of the business a restrictive covenant on the part of the seller is enforceable if its limitations are no broader in terms of time and geographic scope than reasonably necessary to afford such protection

Creditor Beneficiary

when a contract is made between two parties for the express benefit of a third person if he or she had earlier furnished consideration to one of the contracting parties

Corporate speech

when a corporation speaks about political or social issues like individual speech, has informational value—it contributes to the public debate on important issues.

Feel simple estate

when a person has complete ownership of real property most impt type of freehold estate

Hostile work environment

when a supervisor, manager or coworker engages in sexually oriented language or conduct that is unwelcome and that is sufficiently severe or pervasive to alter the terms and conditions of employment for and employee who has been targeted Multiple sexual comments might not individually be severe but could cumulatively become pervasive and thereby also create a hostile work envt

Executed contract

when both sides have completed their part of the bargain

Tort of false imprisonment

when persons are unlawfully confined or restrained without their consent

Intestate

when the decedent has died without a will state laws govern the disposition of their estate

Rejection

when the offeree notifies the offeror that he or she clearly does not intend to accept the offer

Donee Beneficiaries

where a contract is made for the benefit of a third person who has not given consideration to either contacting party

Fiduciary relationship

where one of the parties occupies a position of trust and confidence relative to the other

Constructive discharge

which occurs when an employee voluntarily quits bc working conditions are so bad that a reasonable person would find them to be intolerable, is actionable under Title VII Either demands for sexual favors could justify a claim of constructive discharge but the Supreme Court has also started that the employer may assert the defense of having adopted, publicized and enforced an adequate anti-harassment policy that the employee failed to utilize

The Fifth Amendment's Due Process Clause guarantees that people

will be treated fairly when the government would deprive them of "life, liberty, or property."

Auctions can be held

with or without reserve

Revocation

withdrawal of the offer by the offeror ordinary offer can be revoked at any time as long as you communicate before an acceptance has occurred

Right of removal

within a short time after the plaintiff files the case in state court, the defendant may have the case moved to a federal district court in the same geographic area.

The parties who seek review must petition the Supreme Court for a

writ of certiorari the Court has absolute discretion in deciding which of these cases are sufficiently important to warrant the granting (usu only 85/year)

When the defendant does not pay a valid judgment, the plaintiff will ask the court to issue a

writ of execution

Copyright assignments transferring ownership must be in

writing and signed by the assignor (transferor) possible to create an implied license granting certain rights to use a copyrighted work but impossible to create an implied assignment that transfers ownership bc of the writing requirement

State of frauds requires that agreements not to be performed within one year of their formation be in

writing is based on the fact that disputes over the terms of long term oral contracts are particularly likely to occur usual approach is to determine whether it was reasonably possible for the contract to have been performed within one year from the time it was made

Interrogatories

written questions submitted by one party to the other, which must be answered under oath primary way by which the questioning party may gain access to evidence that otherwise would be solely in the possession of his or her adversary

Federal Trademark Dilution Act (FTDA)

written specifically to protect trademarks that a court determines to be famous only famous if it is widely known by the GENERAL American consuming public

Crime

wrong committed against society and defined by society

No "magic words" are required to make an offer

you don't have to use the word offer or precise legal terms all that is needed is a MANIFESTATION of an intent to make an offer

Professionals

you have a higher than usual duty of care to clients and customers