UIW BLW3317 - Legal Aspects of Business (20200210)
circumstantial evidence
(indirect evidence) evidence used to imply a fact but not prove it directly
Why did the plaintiff think it should be entitled to full recovery under the contract, including for services rendered as a real estate broker? Why did the court deny that?
-contract made clear that there would be a success fee -????
Even if the plaintiff were not a real estate broker, why would that mean it could not recover for real estate services provided to the defendant?
-statutory entitlements for licensed broker do not apply because not licensed broker
The Law serves to
1) keep the peace 2) maintain the status quo 3) preserve individual rights 4) protect minorities against majorities 5) promote social justice 6) provide for orderly social change
the correct order of priority used in the process of formal administrative adjudication:
1. Complaint 2. Answer 3. Hearing before ALJ 4. Order or ALJ 5. Appeal to Governing Board of Agency 6. Final agency order 7. Appropriate court for review of agency decision 8. Court order
The New Chevron Standard for courts when reviewing agency interpretations of law, which involves the following two questions:
1. Did Congress DIRECTLY address the issue in dispute in the statute? If so, the statutory language PREVAILS. 2. If the statute is SILENT or ambiguous, is the agency's interpretation "reasonable"? If it is, a court should uphold the agency's interpretation even if the court would have INTERPRETED the law differently.
the two basic types of administrative agencies
1. Executive agencies 2. Independent regulatory agencies
The Arbitrary and Capricious Standard includes factors, such as whether the agency has done any of the following:
1. Failed to provide a RATIONAL explanation for its decision. 2. Changed its PRIOR policy without justification. 3. Considered LEGALLY inappropriate factors. 4. Entirely failed to consider a RELEVANT fact. 5. Rendered a decision plainly CONTRARY to the evidence.
the three basic steps involved in notice-and-comment rulemaking
1. Notice of the proposed rulemaking 2. Comment period 3. Final rule
Agencies can conduct warrantless searches in the following situations:
1. Searches in certain highly REGULATED industries, such as firearms or liquor. 2. When a statute permits warrantless searches or certain types of HAZARDOUS operations such as coal mines. 3. When there is an EMERGENCY situation.
the two basic types of subpoenas (a document commanding a person to appear at a certain time and place or give testimony concerning a certain matter).
1. Subpoena ad testificandum 2. Subpoena duces tecum
To determine whether an agency is abusing its discretion in pursuing information, a court may consider such factors as the following:
1. The PURPOSE of the investigation. 2. The RELEVANCE of the information being sought. 3. The SPECIFICITY of the demand for testimony or documents. 4. The BURDEN of the demand on the party from who the information is sought.
the three agencies' powers:
1. rule making 2. enforcement 3. adjudication
Brown v. Board of Education
1954 - The Supreme Court overruled Plessy v. Ferguson, declared that racially segregated facilities are inherently unequal and ordered all public schools desegregated.
The highest duty of care is imposed on which of the following? A. A Common Carrier B. A Lessee C. A Warehouser D. An innkeeper
A Common Carrier
In State X, plumbers must purchase a license but do not have to pass an examination. This is an example of: A. A Regulatory License B. A Revenue License C. Both A and B D. Neither A or B
A Revenue License
A Creditor Beneficiary is:
A Third-party Beneficiary
A Creditor Beneficiary is: A. The same as a donnee beneficiary B. A Third-party Beneficiary C. An Incidental Beneficiary D. None of the above
A Third-party Beneficiary
Sole Proprietorship
A business owned by one person
non-profit organization
A business whose goal is to provide a service rather than to make a profit, such as the American Red Cross.
What is a tort?
A civil wrong
Uniform Commercial Code
A collection of laws that governs various types of business transactions.
Mirror Image Rule
A common law rule that requires that the terms of the offeree's acceptance adhere exactly to the terms of the offeror's offer for a valid contract to be formed.
Restatement of the Law of Contracts
A compilation of model contract law principles drafted by legal scholars. The Restatement is not law.
Implied Contract
A contract formed in whole or in part from the conduct of the parties.
Express Contract
A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.
illusory promise (illusory contract)
A contract into which both parties enter but in which one or both of the parties can choose not to perform their contractual obligations. Thus, the contract lacks consideration.
Voidable Contract
A contract that may be legally avoided at the option of one or both of the parties.
Assumption of Risk
A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.
Assumption of risk
A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.
Delegation Doctrine
A doctrine based on Article I, Section 8, of the U.S. Constitution, which has been construed to allow Congress to delegate some of its power to make and implement laws to administrative agencies.
Promissory Estoppel
A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise.
trade secret
A formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace.
The Convention on Contracts for the International Sale of Goods is:
A kind of treaty setting out international contract law, to which the US is a party
Bureaucracy
A large organization that is structured hierarchically to carry out specific functions.
Specific Performance
A legal action to compel a party to carry out the terms of a contract.
Contributory Negligence
A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff.
Estoppel
A legal impediment to denying a fact or restoring a right that has been previously waived.
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.
Compensatory Damages
A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.
Rescission is: A. The discharge of one party to a contract through substitution of a third person. B. An agreement to settle for substitute performance. C. A mutual agreement between parties to a contract to discharge each other's contractual duties. D. None of the above
A mutual agreement between parties to a contract to discharge each other's contractual duties.
What happens when substantial changes occur to a proposed rule because of public comments?
A new proposal and a new opportunity for comments are required.
As a general rule: A. Goods cannot be sold by persons with voidable title B. A rightful owner cannot be estopped from asserting title against an innocent purchaser C. A merchant cannot transfer the rights of person who entrusts goods to him D. A person with voidable title has the power to transfer title to a good-faith purchaser for value
A person with voidable title has the power to transfer title to a good-faith purchase for value
Undisclosed Principal
A principal whose identity is unknown by a third person, and the third person has no knowledge that the agent is acting for a principal at the time the agent and the third person form a contract.
intellectual property
A product of the intellect, such as an expressed idea or concept, that has commercial value.
Express warranty
A seller's or lessor's oral or written promise, ancillary to an underlying sales or lease agreement, as to the quality, description, or performance of the goods being sold or leased.
Information return
A tax return submitted by a partnership that only reports the income and losses earned by the business. The partnership as an entity does not pay taxes on the income received by the partnership.
S corporation
A unique government creation that looks like a corporation but is taxed like sole proprietorships and partnerships
Unenforceable Contract
A valid contract rendered unenforceable by some statute or law.
Donald Debtor sold his 1957 Chevrolet to his brother for one-fifth its value sixty days before filing for bankruptcy. The trustee wishes to avoid the transaction on the basis that it was: A. A hypothetical lien B. A lease disguised as a sale B. A preferential payment D. A voidable preference
A voidable preference
Implied Warranty of Merchantability
A warranty that goods being sold or leased are reasonably fit for the ordinary purpose for which they are sold or leased, are properly packaged and labeled, and are of fair quality. The warranty automatically arises in every sale or lease of goods made by a merchant who deals in goods of the kind sold or leased.
intentional tort
A wrongful act knowingly committed. (ex. assault and battery)
Roe v. Wade (1973)
Abortion rights fall within the privacy implied in the 14th amendment
Defamation
Act of harming or ruining another's reputation
Norris-LaGuardia Act
Act that guarantees workers' right to organize and restricts issuance of court injunctions against nonviolent union activity such as strikes, picketing, and boycotts.
Which type of law is used when the Federal Communications Commission publishes a regulation on cigarette advertising on television?
Administrative Law
The law that specifies the procedural requirements that all federal agencies must follow in their rule making, adjudication, and other functions is the:
Administrative Procedure Act
Legislative Rules
Administrative agency rules that affect substantive legal rights and carry the same weight as congressionally enacted statutes.
Interpretive Rules
Administrative agency rules that simply declare policies or explain the agency's positions and do not establish any legal rights or obligations.
The FDA prohibits Drug A from being marketed in the US. What is this an example of?
Agency Regulation
Principal
Agent acts on behalf of
plea bargain
Agreement between a prosecutor and a defendant that the defendant will plead guilty to a lesser offense to avoid having to stand trial for a more serious offense.
If Al and Betty have an executory contract, and if Betty tells AI that she will not be fulfilling her side of the bargain, A. Al must wait until the date of performance to see if Betty in fact performs B. Al can sue immediately for full contract damages C. Al can never use because the contract was executory when Betty notified him of nonperformance D. Non of the above
Al can sue immediately for full contract damages
A bailor may be held liable to the bailee on: A. A Negligence Theory B. A Warranty Theory C. A Strict Liability Theory D. All of the above
All of the above
A possible defense to breach of warranty is: A. Lack of privity B. Absence of an express warranty C. Disclaimer of implied warranties D. All of the above
All of the above
Alternatives to bankruptcy include: A. An assignment B. A composition C. Receivership D. All of the above
All of the above
An offer generally: A. Is rejected by a counteroffer B. Can be revoked if the offeror changes his or her mind C. Can lapse after a reasonable period of time D. All of the above.
All of the above
Contract remedies protect: A. A Restitution Interest B. A Repliance Interest C. An Expectation Interest D. All of the above
All of the above
Examples of promises enforceable without consideration include: A. An agreement modifying a sales contract B. A promise to pay a debt after the statute of limitations has run C. A debtor's promise to repay a debt that has been discharged in bankruptcy D. All of the above
All of the above
In some states, auditors are liable to: A. Direct Clients B. Third-party beneficiaries of the audit C. Third parties that might reasonable have relied on certified financial statements D. All of the above
All of the above
In some states, auditors are liable to: A. Direct clients B. Third-party Beneficiaries of the audit C. Third-parties that might reasonably have relied on certified financial statements D. All of the above
All of the above
Restitution is available: A. When the contract was avoided because of incapacity B. When the other party breached C. When the party seeking restitution breached D. All of the above
All of the above
Rules that required certain contracts to be in writing are found in: A. State Statutory Law B. The UCC C. The Statute of Frauds D. All of the above
All of the above
Complete Performance
All terms have been carried out properly and completely.
Notice-and-comment rulemaking
An administrative rulemaking procedure that involves the publication of a notice of a proposed rulemaking in the Federal Register, a comment period for interested parties to express their views on the proposed rule, and the publication of the agency's final rule in the Federal Register.
A composition is: A. A procedure where a receiver takes over the debtor's property B. An agreement by creditors to take less than the face value of the debt C. Basically the same as an assignment D. None of these
An agreement by creditors to take less than the face value of the debt
An employee of a flower shop has been purchasing buckets of flowers for the shop from a farmer's market weekly for almost six months. What type of authority does the flower shop employee have at the market?
Apparent
Betty Baker found a bicycle apparently abandoned near her house. She took it home and spent $150 repairing and painting it, after which Carl appeared and proved his ownership of it. Under what theory is Betty able to get reimbursed for her expenditures? A. Express Contract B. Implied Contract C. Apparent or Quasi-contract D. Executory Contract E. None: She will not get reimbursed
Apparent or Quasi-contract
When someone finds the property belonging to another, and apparently abandoned, and undertakes to improve it, under what theory would they be entitled to reimbursement? A. Express Contract B. Implied Contract C. Apparent or Quasi-contract D. Executory Contract
Apparent or Quasi-contract
What is the term for when copyrighted material is used in a satire or parody?
Application of fair use doctrine
Company A and Company B agree to the use of an independent third party to resolve a contract dispute. The third party decides in favor of Company B. Which type of alternative dispute resolution is this an example of?
Arbitration
Personal Promises: A. Are always delegable B. Are generally not delegable C. Are delegable if not prohibited by public policy D. Are delegable if not barred by the contract
Are generally not delegable
The philosopher recognized at the first to advocate virtue ethics, was
Aristotle
What does a person need to file to form an LLC?
Articles of organization
Fatima accepts a ride from Sara, knowing that Sara does not have her license. Sara causes an accident, and Fatima sues Sara. What is Sara's defense?
Assumption of Risk
Which doctrine protects children who trespass on another's property due to the presence of something such as an unfenced swimming pool?
Attractive nuisance
If it was not illegal to make bongs and roach clips, why did the court determine that this contract should not be enforced?
Because the court decided that marijuana paraphernalia furthers marijuana use's illegality and that the statute making marijuana illegal implies that the selling of bongs and roach clips is illegal/not condoned by law
Why did the court think it was significant that Bovard had repossessed the jewelry making paraphernalia/equipment?
Because when deciding whether to consider enforcement of a contract, one of the things they take into account is the seriousness of forfeiture if the contract were not enforced- the repossession of jeweling making paraphernalia made forfeiture tenuous
In a products-liability case: A. Only tort theories are typically asserted B. Both tort and contract theories are typically asserted C. Strict liability is asserted only when negligence is not asserted D. Breach of warranty is not asserted along with strict liability
Both tort and contract theories are typically asserted
The appeals court remanded the case; what did it suggest the plaintiff should recover on retrial?
But for other sources, plaintiff may have provided only financial and marketing advice for which it did not need a broker's license. (See, e.g. [Citation] [statute barring unlicensed contractor from receiving fees for some services did not prohibit recovery for work not within scope of licensing statute].)
Article 2 differs from the common law of contracts: A. In no substantial way B. By disallowing parties to create agreements with open terms C. By obligating courts to respect all terms of the contract D. By imposing special obligations on merchants
By imposing special obligations on merchants
In which type of business entity is there double taxation?
C Corp
A condition precedent: A. Is a condition that terminates a duty B. Is always within the control of one of the parties C. Is an event giving rise to performances D. Is a condition that follows performance
C. Is an event giving rise to performance
Creditors may obtain security: A. By agreement with the debtor B. Through operation of law C. Through both of the above D. Through none of the above
C. Through both of the above
What is the geographical name for the area served by each U.S. court of appeals?
Circuit
Which of the following employer accommodations would be the least reasonable for employees for religious beliefs?
Closing the business on Sundays
What kind of law is made when an appellate court endorses a rule to be used in deciding court cases?
Common Law
Which kind of law is based on the interpretation of an existing law?
Common Law
A valid offer must be: A. Written B. Written and Intended C. Communicated by letter D. Communicated and Definite
Communicated and Definite
Sophia is a tattoo artist and asks her friend Daniel if she can practice on him. Daniel verbally agrees, and Sophia tattoos a small letter on his ankle. A week later, Daniel decides he does not like the tattoo and sues Sophia. What is Sophia's defense?
Consent
Damages attributable to losses that flow from events that do not occur in the ordinary course of events are: A. Incidental Damages B. Liquidated Damages C. Consequential Damages D. Punitive Damages
Consequential Damages
Jack has a contract with Mei to repair Jack's steering column on his car. Mei works on Jack's car and returns it to him. A few days later, Jack is driving to the store and his steering will not work, causing him to crash into a street sign. Which remedy is available to Jack?
Consequential damages
Strict product liability is imposed by law as a matter of public policy. On which assumption does the policy rest?
Consumers should be protected from unsafe products.
As a general rule:
Contracts do not have to be in writing to be enforceable
As a general rule: A. Contracts do not have to be in writing to be enforceable B. Contracts that can be performed in one year must be in writing C. All oral contracts are unenforceable D. A surety-ship agreement need not be in writing to be enforceable
Contracts do not have to be in writing to be enforceable
Maria graduated with her engineering degree and moved out of her rental property when the lease ended. She cleaned the property well, returned the keys, and noted no damage to the apartment, meeting all requirements of the rental contract. However, her landlord has refused to return her security deposit, stating he is using it to pay to repaint the apartment. Maria may sue her landlord for which of the following torts?
Conversion
What is the legal right that gives the author of qualifying subject matter, if the author meets other requirements established by law, the exclusive right to publish, produce, sell, license, and distribute the work?
Copyright
A general partnership does not want to dissolve when a partner transfers its partnership interest. What can the partnership do to prevent this?
Create articles of partnership with a buy-sell agreement.
Public Domain
Creative work that's not copyrighted and therefore free for you to use whenever you want.
The standards of the American Institute of CPA's: A. Derive from a federal statute enacted by Congress B. Derive from a model state code, enacted by various state legislatures C. Derive from the AICPA and may be the basis of common-law liability D. Derive from regulations adopted by the Securities and Exchange Commission
Derive from the AICPA and may be the basis of common-law liability
The standards of the American Institute of Certified Public Accountants (AICPA): A. Derive from a federal statute enacted by Congress B. Derive from a model state code, enacted by various state legislatures C. Derive from the AICPA and may be the basis of common-law liability D. Derive from regulations adopted by the Securities and Exchange Commision
Derive from the AICPA and may be the basis of common-law liability
What are the elements of unconscionability that the court articulates?
Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? The terms are to be considered 'in the light of the general commercial background and the commercial needs of the particular trade or case.'
Which rule is not automatically discriminatory but may be discriminatory in practice because it excludes too many people in a protected group?
Disparate impact
Talia's car is hit by William's truck after Talia has driven from her home in New York to North Carolina. Talia is transported to a hospital in North Carolina. Her medical and other bills total over $100,000. Talia wants to sue in federal court. On which type of jurisdiction will Talia base her claim?
Diversity
Under the UCC, if the buyer breaches, the seller can: A. Withhold further delivery B. Resell the goods still in the seller's possession C. Recover damages D. Do all of the above
Do all of the above
To perfect a security interest, one may: A. File a financing statement B. Pledge Collateral C. Take a purchase-money-security interest in consumer goods D. Do any of the above
Do any of the above
Oliver decides to shoot a rubber band at his friend Kamal. The rubber band misses Kamal, but goes on to hit Sophia in the eye, injuring her. This is an example of
Doctrine of Transferred Intent
The highest-priority class set out by the 2005 act is for: A. Employee wages B. Adminstrative expenses C. Property settlements arising form divorce D. Domestic support obligations
Domestic support obligations
What must the plaintiff establish in a negligence case?
Duty of care, breach, causation, foreseeable harm, and damages
A real estate agent representing the buyer tells the seller that the buyer would be willing to pay much more than the asking price. Which duty did the agent owe the principal in this situation?
Duty of loyalty
A trainer agrees to fly to another state to train a new group of employees. Her flight home is delayed due to a major storm and she must pay to stay in a hotel for two nights. What duty does the company who requested the training owe the trainer?
Duty to reimburse
Full Faith and Credit Clause
Each state court is obligated to respect the final judgments of courts in other states
Michael is a statistician. He works from home on a company-provided computer and has set hours. He is paid by Company A, which determines his pay rate and withholds federal taxes from his paycheck. Is Michael an employee or an independent contractor?
Employee because Company A withholds taxes
Perfection benefits the secured party by: A. Keeping the collateral out of the debtor's reach B. Preventing another creditor from getting a secured interest in the collateral C. Obviating the need to file a financing statement D. Establishing who gets priority when debtor defaults
Establishing who gets priority if the debtor defaults
A Merger Clause:
Evidences an intention that the same written contract is the parties' full understanding
A Merger Clause: A. Is required when goods are sold for $500 or more B. Is used when two parcels of real estate are sold in the same contract C. Invalidates a contract for the sale of securities D. Evidences an intention that the written contract is the parties' full understanding
Evidences an intention that the same written contract is the parties' full understanding
Greg purchases a dishwasher from a store in the mall. The seller states at the time of the purchase that the dishwasher will complete the wash cycle within 20 minutes. After installation, Greg discovers that the dishwasher takes almost 40 minutes to complete the wash cycle. Which type of warranty may have been breached?
Express
In a bailment for the benefit of a bailee, the bailee's duty of care is: A. Slight B. Extraordinary C. Ordinary
Extraordinary
Malpractice
Failure by a health professional to meet accepted standards
A contract to pay a lobbyist to influence a public official is generally illegal
False
A contract to pay a lobbyist to influence a public official is generally illegal. True/False
False
In a work parking garage, a recently terminated employee approaches his boss and verbally mocks him. The boss punches the employee in the face, knocking him out. Later, the employee sues the boss for assault. The boss claims it was self-defense, as his life was threatened by the employee. The boss's defense is valid.
False
Strict liability is used only in product liability cases.
False
True/False: After the Chevron case, all of those involved in rulemaking by administrative agencies accepted that decision without discussion.
False
True/False: All cabinet departments of the executive branch are included in independent regulatory agencies.
False
True/False: Before any on-site investigation by a federal administrative agency, most businesses resist those inspections by going to an appeals court.
False
True/False: Every administrative hearing procedure must be exactly the same as legislated by Congress.
False
True/False: The administrative law judge and the agency's investigative and prosecutorial staff are basically one integrated unit.
False
True/False: The major function of today's federal agencies is adjudication.
False
FTC
Federal Trade Commission. Protects consumers from misleading and fraudulent advertising. Reviews advertising claims. Can order a company to change their ad
Equal Employment Opportunity Commission
Federal agency created to enforce the Civil Rights Act of 1964, which forbids discrimination on the basis of race, creed, national origin, religion, or sex in hiring, promotion, or firing.
FMLA (Family and Medical Leave Act)
Federal law requiring organizations with 50 or more employees to provide up to 12 weeks of unpaid leave after childbirth or adoption; to care for a seriously ill family member or for an employee's own serious illness; or to take care of urgent needs that arise when a spouse, child, or parent in the National Guard or Reserve is called to active duty
Which cases arise under the U.S. Constitution, treaties, and federal statutes and regulations?
Federal question cases
Assignments are not allowed: A. For rights that will arise from a future contract B. When they will materially change the duties that the obligor must perform C. Where they are forbidden by public policy D. For any of the above
For any of the above
An individual selling her car could be liable: A. For breaching the implied warranty of merchantability B. Under the strict liability tort C. For breaching the implied warranty of Fitness D. Under two of the above
For breaching the implied warranty of fitness
disregarded entity
For tax purposes, an entity that does not need to file its own tax return or pay taxes; profits and losses flow through disregarded entities to the owners.
Ratification
Formal approval
Under Constitutional law, which amendment provides fundamental guarantees in cases regarding life, liberty, or property of U.S. citizens?
Fourteenth Amendment
Scienter is an element of: A. Negligence B. Fraud C. Malpractice D. Restraint of Trade
Fraud
Scienter is an element of: A. Negligence B. Fraud C. Malpractice D. Restraint of trade
Fraud
Misrepresentation that does not go to the core of a contract is: A. Fraud in the Execution B. Fraud in the Inducement C. Undue Influence D. An example of mistake
Fraud in the Execution Fraud in the Execution: Causing a person to sign a legal document while that person believes he or she is signing some other type of document.
Jack is ready and willing to drive Anne to the airport. But Anne's flight is cancelled, and she refuses to pay. This is an example of : A. Impracticability of Performance B. Frustration of Purpose C. Discharge by Merger D. None of the above
Frustration of Purpose
What did Bovard want in this case?
He wanted what he was owed according to the signed promissory notes after company transaction
What is a primary function of state supreme courts?
Hearing appeals from intermediate appellate state courts
Which court hears appeals directly from trial courts?
Hearing appeals from intermediate appellate state courts
Eva works the cash register at a mechanics' shop. The mechanics post pictures of scantily-clothed women at their work stations. They regularly discuss their sexual activities at work and often tell "dirty" jokes. Eva feels very uncomfortable and sues her employer for sexual harassment. What is Eva's argument?
Hostile work enviornment
Enabling Legislation
How Congress creates a federal agency
Leilani purchases a donut from a local bakery. In the first bite, Leilani breaks a tooth because a piece of metal is in the donut. Lailani has to see a dentist to fix her broken tooth. Which warranty was breached?
Implied warranty of merchantability
Jack contracts with Anne to driver her to the airport Wednesday afternoon in his specially designed stretch limousine. On Wednesday morning Jack's limousine is hit by a drunken driver, and Jack is unable to drive Anne. This is an example of: A. Impossibility of Performance B. Frustration of Purpose C. Discharge by Merger D. None of the above
Impossibility of Performance
Under the strict liability rule in Restatement, Section 402A, the seller is liable for all injuries resulting from a product: A. Even though all possible care has been exercised B. Regardless of the lack of contract with the user C. In both of the above situations D. In none of the above situations
In both of the above situations
Gambling Contracts are: A. Always unenforceable B. Enforceable if written C. In effect enforceable in certain situations involving the sale of securities D. Always enforceable when made with insurance companies
In effect enforceable in certain situations involving the sale of securities
severability
In law, severability (sometimes known as salvatorius, from Latin) refers to a provision in a contract which states that if parts of the contract are held to be illegal or otherwise unenforceable, the remainder of the contract should still apply. Sometimes, severability clauses will state that some provisions to the contract are so essential to the contract's purpose that if they are illegal or unenforceable, the contract as a whole will be voided. However, in many legal jurisdictions, a severability clause will not be applied if it changes the fundamental nature of the contract, and that instead the contract will be void; thus, often this is not explicitly stated in the severability clause.
Initial Order
In the context of administrative law, and agency's disposition (a judge's ruling) is a matter other than rulemaking. And administrative law judge's initial order becomes final unless it is appealed.
Oliver owns Quality Apple Farms. He has a 2-year contract with Whole Pine, Inc., to deliver mulch monthly to his farm. After 16 months of obliging this contract, Whole Pine, Inc., ceases to deliver the mulch. Oliver must drive to the garden store and spend $560 in transportation and mulch. Oliver sues Whole Pine, Inc. What type of damages is Oliver seeking?
Incidental
For the purpose of sales law, goods: A. Always include items sole incidental to a service B. Include things movable at the time of identification to the contract C. Include blood supplied for transfusions D. Include all of the above
Include things movable at the time of identification to the contract
How long can a trademark be protected under federal law?
Indefinitely
One reason for the legal protection of intellectual property is to promote
Innovation
Factoring: A. Is an example of delegation of duties B. Involves using an account receivable as collateral for a loan C. Involves the purchase of a right to receive income from another D. Is all of the above
Involves the purchase of a right to receive income from another Factor: A person who pays money to receive another's executory contractual benefits
Consideration: A. Can consist of a written acknowledgement of some benefit received, even if in fact the benefit is not delivered B. Cannot be nominal in amount C. Is bargained-for-act, forbearance, or promise from the promise D. Is all of the above
Is bargained-for-act, Forbearance, or promise from the promise
An implied warranty of merchantability: A. Is created by an express warranty B. Is created by law C. is impossible for a seller to disclaim D. Can be disclaimed by a seller only if the disclaimer is in writing
Is created by law
An employee's promise not to compete with the employer after leaving the company:
Is enforceable if related to the employer's property interest
An employee's promise not to compete with the employer after leaving the company: A. Is never enforceable because it restrains trade B. Is always enforceable if in writing C. Is always enforceable D. Is enforceable if related to the employer's property interest
Is enforceable if related to the employer's property interest
What is a primary advantage of alternative dispute resolution (ADR)?
It saves time and money
Endothon Company drilled an oil well on property it owned in a residential neighborhood in South Beach. Bill lived next door. Although the company followed standard operating procedures and obeyed all relevant regulations, the oil well "blew," spraying mud and oil on Bill's property. What best describes the company's liability to Bill?
It should be held strictly liable for engaging in an abnormally dangerous activity.
Common Law
Judge-made law that originated in England from decisions shaped according to prevailing custom. Decisions were applied to similar situations and gradually became common to the nation.
Creditor filed a security interest in inventory on June, 1, 2012. Creditor's interest takes priority over which of the following? A. A purchaser in the ordinary course of business who bought on June 5 B. Mechanic's lien filed on May 10 C. PMSI in after-acquired property who filed on May 15 D. Judgement lien creditor who filed the judgement on June 10
Judgement lien creditor who filed the judgement on June 10
Federal Question Jurisdiction
Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties.
Kamal and Sara own a camping gear company. Kamal had the idea to make a new, bear-resistant tent. Sara and Kamal make a prototype together. Kamal and Sara separately file for a patent, but Kamal submits his application first. Who will end up with patent rights to the tent?
Kamal because he filed first (dick)
An individual is starting a business with another company. They want to be able to decide each year how to be taxed. Which type of business model should this individual choose?
LLC
Rules and regulations
Laws made by administrative agencies
proximate cause
Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.
Vicarious Liability
Legal doctrine under which a party can be held liable for the wrongful actions of another party.
What do administrative agency rules consist of?
Legislative and interpretive rules
3 Branches of government
Legislative, Executive, Judicial
Among subject the UCC does not cover are: A. Letters of Credit B. Service Contracts C. Sale of Goods D. Bank Collections
Letters of Credit
For mistakes in a registration statement filed with the SEC, an accountant is: A. Liable only for negligence B. Absolutely liable C. Strictly liable D. Liable only for gross negligence
Liable only for negligence
For mistakes in registration statement filed with the SEC, an accountant is: A. Liable only for negligence B. Absolutely liable C. Strictly Liable D. Liable only for gross negligence
Liable only for negligence
Two friends equally contribute to start a construction business with pass-through tax status. After several months of good business, a third friend wants to invest in the company but does not want to manage any aspects of operations. Which type of business model should these individuals choose?
Limited Partnership
What is an advantage of corporations?
Limited liability
How is a limited partnership different from a general partnership?
Limited partners are liable only up to their contribution, while general partners are personally liable without limits.
A landlord is receiving constant complaints about a tenant's loud music. He does not want to lose the tenant, and he would like to resolve the issue. The landlord wants to hire a neutral third party to help reach an agreement. Which method would be the best to accomplish this?
Mediation
A hair stylist and client disagree over whether the stylist properly styled the client's hair. A 3rd party, who is neutral in the debate, works with both of them in an attempt to resolve their dispute. Which function does the 3rd party serve in this situation?
Mediator
Punitive Damages
Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.
In a bailment, the bailee: A. Must return similar goods B. Must return identical goods C. Acquires title to the goods D. Must pay for the goods
Must return the identical goods
The rule that if one party to a contract has not made a binding obligation, the other party is not bound is called: A. A revocation B. Mutuality of Obligation C. Accord and Satisfaction D. Estoppel
Mutuality of Obligation
An Offer: A. Must specify time, place, and manner of acceptance B. Must be accepted immediately to be valid C. Need not be accepted immediately D. Can only be accepted by the same means it was made
Need not be accepted immediately
Exculpatory clauses are something enforceable when they relieve someone from liability for:
Negligence
Exculpatory clauses are something enforceable when they relieve someone from liability for: A. An intentional act B. Recklessness C. Negligence D. All of the above
Negligence
Which of the following is not a subject of mandatory bargaining?
New products to manufacture
Did the court here say that cross-collateral contracts are necessarily unconscionable?
No
Seller does not disclose to Buyer that the foundation of a house if infested with termites. Upon purchasing the house and remodeling part of the basement, Buyer discovers the termites. Has Buyer a cause of action against the Seller? Yes/No
No
Li is an independent contractor who has been hired to create a sculpture for Bulzai, Inc. While heading to the company to install the sculpture, he is in a car accident and injures another driver. Is the employer liable?
No because Li is an independent contractor
Who are the members of juries in administrative hearings?
No one, because there are no juries
A flower shop owner has a home garage sale. Kamal purchases a radio at the sale and is told the radio is five years old; nothing is said about its quality. Once home, Kamal finds the radio is unusable. Kamal tries to obtain a refund, but the seller refuses. Will Kamal win in a breach of warranty claim?
No, because the owner was not a merchant with respect to radio goods and there was no express warranty.
Does an agency involved in rulemaking need to respond to all comments during the comment period?
No, the agency only must respond to any significant comments that bear directly on the proposed rule.
When breach of contract caused no monetary loss, the plaintiff is entitled to: A. Special Damages B. Nominal Damages C. Consequential Damages D. No Damages
Nominal Damages
Under the UCC, the definition of merchant is limited to: A. Manufacturers B. Retailors C. Wholesales D. None of the above
None of the above
In order for a misrepresentation to make a contract voidable: A. It must have been intentional B. The party seeking to void must have relied on the misrepresentation C. It must always be material D. None of the above is required
None of the above is required
Upon reaching the age of majority, a person who entered into a contract to purchase goods while a minor may: A. Ratify the contract and keep the goods without paying them C. Disaffirm the contract and keep the goods without paying for them C. Avoid paying for the goods by keeping them without ratifying or disaffirming the contract D. None of these
None of these
Loto and Nora are at an art auction. Nora wants to buy a painting, but she does not have the money to purchase it. Loto tells Nora he will give her $5,000 next week. Nora purchases the painting on credit. When she sees Loto the following week, he tells Nora he changed his mind; he will not give her the money. Nora sues Loto for the money. Who will win and why?
Nora will win because she relied on Lott's promise to her detriment
Courts generally apply what when interpreting agreements to see if a valid contract exists? A. Subjective Standard B. Objective Standard C. Either a Subjective or an Objective Standard D. None of the above
Objective Standard
In interpreting agreements for the purpose of establishing whether a valid contract exists, courts generally apply: A. Subjective Standard B. Objective Standard C. Either a Subjective or an Objective Standard D. None of the above
Objective Standard
Substantial Performance
Occurs when one party fulfills enough of its contract obligations to warrant payment
An Unliquidated Debt is a debt: A. One is not able to pay B. Not yet paid C. Of uncertain amount D. That is unenforceable debt
Of uncertain amount
Omar is a limited partner in Bullzai Limited Partnerships (LP) and does not participate in management. Daniel is the general partner. Who is liable for Bullzai's debts?
Omar is liable for the LP's debts up to his capital contribution, but Daniel is liable for all debts.
An implied contract: A. Must be in writing B. Is one in which the terms are spelled out C. Is one inferred from the actions of the parties D. Is imposed by law to avoid an unjust result E. May be avoided by one party
One inferred from the actions of the parties
Administrative Law Judge
One who presides over an administrative agency hearing and who has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of facts.
Which form of business organization has two or more owners who share the risks and the profits?
Partnership
Americans with Disabilities Act
Passed by Congress in 1991, this act banned discrimination against the disabled in employment and mandated easy access to all public and commerical buildings.
What is a grant by the federal government to the inventor of an invention for the exclusive right to use, sell, and license the invention for a limited amount of time?
Patent
Patrick installed a new window shade. He used his brand-new Bullzai cordless electric drill and followed the directions that came with the window shade. Unfortunately, Patrick struck a piece of metal in the ceiling, which caused the electric drill to bounce back and jerk out of his hand. Even though Patrick released the button that activated the drill, the drill did not stop, but fell on his arm and cut him badly. Federal safety regulations require that all electric drills stop when the activating buttons are released. The Bullzai electric drill was designed to stop when its activating button was released, but Patrick's drill did not conform to Bullzai's specifications. Patrick seeks to sue Bullzai for his injuries. Based on these facts, what is the best prediction?
Patrick will likely recover damages from Bullzai because the electric drill failed to conform to Bullzai's manufacturing or assembly specifications.
Darlene Debtor did the following within ninety days of filing for bankruptcy. Which could be set aside as a preferential payment? A. Paid water and electricity bills B. Made a gift to the Humane Society C. Prepaid an installment loan on inventory D. Borrowed money form a bank secured by mortgage on business property
Prepaid an installment loan on inventory
collective bargaining
Process by which a union representing a group of workers negotiates with management for a contract
Alice discusses with her neighbor Bob her plan to hire Woodsman to cut three trees on her side of their property line, mentioning that she can get a good deal because Woodman is not between jobs. Bob says, "Oh, don't do that. My brother is going to cut some trees on my side, and he can do yours too for free." Alice agrees. But Bob's brother is preoccupied and never does the job. Three weeks later Alice discovers Woodsman's rates have risen prohibitively. Under what theory does Alice have a cause of action against Bob? A. Express Contract B. Promissory Estoppel C. Quasi-contract D. Implied Contract E. None; she has no cause of action against Bob.
Promissory Estoppel. Alice had relied on Bob's promise.
What is reasonable accommodation for a disabled worker under the ADA?
Providing a part-time schedule
What is a work considered once copyright has expired?
Public Domain
A managed care company was found liable for denying valid claims for health insurance coverage. The company was ordered to pay compensatory damages to a group of plaintiffs. To "make an example" of the insurer, the court also ordered the insurer to pay an additional $10 million to deter other insurers from engaging in the same wrongful acts.
Punitive Damages
If the seller breaches, the buyer can generally: A. Recover the goods, even when the goods have not been identified to the contract and the seller is not insolvent B. Purchase substitute goods and recover their cost C. Purchase substitute goods and recover the difference between their cost and the contract price D. Recover punitive damages
Purchase substitute goods and recover the difference between their cost and the contract price
A water utility discovers that there is water being consumed at an address that has no account and no record of a meter. The last record of an account at the address was 10 years ago. There is currently a person living at the address using water. The water utility sues the current owner and wins. What was the water utility's cause of action?
Quasi contract
Rainbow Airlines is a new air carrier headquartered in Chicago. The company extensively studied the psychology of passengers and determined that more than 93 percent of its passengers felt most comfortable with female flight attendants between the ages of 21 and 34. To increase its profitability, the company issued a policy of hiring only such people for jobs in the air but opened all ground jobs to anyone who could otherwise qualify. The policy made no racial distinction and, in fact, nearly 30 percent of the flight attendants hired were black. What violations of federal law has Rainbow committed, if any?
Rainbow Airlines has violated Title VII of the Civil Rights Act and the Age Discrimination in Employment Act.
Due diligence requires an accountant to: A. Exhaustively search every document in the files of the business audited B. Reasonably investigate the books and records of the business audited C. Investigate only those books and records specified by the client D. None of the above
Reasonably investigate the books and records of the business audited
Due diligence requires an accountant to: A. Exhaustively search every document in the files of the business audited B. Reasonably investigate the books and records of the business model C. Investigate only those books and records specified by the client D. None of the above
Reasonably investigate the books and records of the business model
Maria and her family own a dairy farm and wish to open a retail store selling their goods. The capital for the store will be provided solely by Maria and her family, and a small number of shareholders. They want a pass-through income structure. Which business entity is appropriate for this situation?
S corporation
Which type of business entity is easiest to form?
Sole Proprietorship
Which type of business is easy to start, has an owner who is his or her own boss, and has an owner who keeps all the profits?
Sole Proprietorship
A disclaimer of liability by a bailee is: A. Never allowed B. Sometimes allowed C. Always allowed D. Unheard of in business
Sometimes allowed
A real estate agent is an example of which type of agent?
Special agent
The Parol Evidence Rule:
States what a written contract discharges all prior or contemporaneous promises that add to, vary, or conflict with it
The Parol Evidence Rule: A. Applies only when contracts must be in writing B. Does not apply to real estate contracts C. States what a written contract discharges all prior or contemporaneous promises that add to, vary, or conflict with it D. Is designed to hold parties to promises they made during negotiations
States what a written contract discharges all prior or contemporaneous promises that add to, vary, or conflict with it
Which kind of law is enacted by state or federal legislatures?
Statutory Law
What is a form of due process that holds that certain rights are so fundamental that the government may not eliminate them?
Substantive due process
When a contract is unconscionable, a court may: A. Refuse to enforce the contract B. Strike the unconscionable clause C. Limit the application of the unconscionable clause D. Take any of the above approaches
Take any of the above approaches
Why is it relevant that the plaintiff had seven children and was on welfare?
Taken under consideration when determining the contract's unconscionability
Fiduciary duty
That duty owed by an agent to act in the highest good faith toward the principal and not to obtain any advantage over the latter by the slightest misrepresentation, concealment, duress or pressure.
A restitution interest is: A. The benefit for which the promisee bargained B. The loss suffered by relying on the contract C. That which restores any benefit one party conferred on the other D. None of the above
That which restores any benefit one party conferred on the other
What happens when no party appeals an adjudication?
The ALJ's decision becomes the final order of the agency
The legal basis for all administrative law is found in
The U.S. Constitution
_______________________ takes precedence over all statutes and judicial decisions that are inconsistent.
The U.S. Constitution
Circuit City Stores v. Adams
The U.S. Supreme Court noted that avoiding the cost of litigation was a real benefit of arbitration
Which courts are the federal court system's trial courts of general jurisdiction?
The U.S. district courts
Right of Publicity
The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission.
Res Ispa Loquitur
"the thing speaks for itself"
Commerce Clause
The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.
Which circumstance would allow the continuation of an agency relationship?
The company hires a new manager of the agent's division
Why did the defendant have a cross-collateral clause in the contract? What would happen if no such clauses were allowed?
The defendant has a cross-collateral clause in the contract as a security interest, giving them preferential rights i.e. allowing them to seize the property when payment is defaulted. If no such clauses were allowed, there would be no preferential rights and virtually no means of enforcement for sellers in installment credit transactions
A customer has a contract to buy a new refrigerator that costs $750 from a store and makes a deposit of $200. The store sells out of refrigerators, so the customer buys one from a different store for $800. What are the customer's damages?
The difference between contract prices
Ren was standing on a ladder to reach a box of supplies. He lost his footing and fell off the ladder, injuring his knee. Ren files for workers' compensation. What will be the outcome of the claim?
The employer must pay 100 percent of the cost of Ren's hospitalization and medical care related to the injury, but not the cost of lost wages.
Trespass to Land
The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.
What are the three branches of government in the United States?
The executive, legislative, and judicial
Breach of Contract
The failure, without legal excuse, of a promisor to perform the obligations of a contract.
Final Order
The final decision of an administrative agency on an issue. If no appeal is taken, or if the case is not reviewed or considered anew by the agency commission, the administrative law judge's initial order becomes the final order of the agency.
When an assignor assigns the same interest twice:
The first assignee generally takes precedence
When an assignor assigns the same interest twice: A. The subsequent assignee generally takes precedence B. The first assignee generally takes precedence C. The first assignee always takes precedence D. The assignment violates public policy
The first assignee generally takes precedence
The Bill of Rights
The first ten amendments to the Constitution
In a sale-on-approval contract: A. The goods are intended primarily for the buyer's use B. The goods are intended primarily for resale C. The risk of loss is on the buyer D. The buyer obtains title upon receipt of the goods
The goods are intended primarily for the buyer's use
C Corporation
The most common type of corporation, which is a legal business entity that offers limited liability to all of its owners, who are called stockholders
A mistake by one party will not invalidate a contract unless: A. The other party knew of the mistake B. The party making the mistake did not read the contract closely C. The parties to the contract had never done business before. D. The party is mistake about the law
The other party knew of the mistake
Where does the burden of proof lie in a civil case?
The plaintiff must produce a preponderance of evidence.
Adjudication
The process of resolving a dispute by presenting evidence and arguments before a neutral decision maker.
Rulemaking
The process undertaken by an administrative agency when formally adopting a new regulation or amending and old one. Rulemaking involves notifying the public of a proposed rule or change and receiving and considering the public's comments.
An exception to the UCC Statute of Frauds provision is:
The reply doctrine
An exception to the UCC Statute of Frauds provision is: A. The one-year rule B. The Reply Doctrine C. Executor Agreements D. All of the above
The reply doctrine
In a C.I.F. contract: A. The seller must obtain insurance B. The buyer must obtain insurance C. The seller has fewer duties than with a C.F. contract D. Title passes to buyer when the seller tenders delivery
The seller must obtain insurance
In the absence of agreement, the place of delivery is: A. The buyer's place of business B. The seller's place of business C. Either the buyer's place of business or the buyer's residence D. Any of the above
The seller's place of business
A woman who sells cigarettes in a state that has legalized recreational marijuana use disagrees with legalizing marijuana. She knows that the federal government still considers marijuana illegal. Which action might the woman take?
The woman may challenge the state law on the basis that it is preempted by federal law.
Under UCC Article 9, when the debtor has pledged collateral to the creditor, what other condition is required for attachment of the security interest? A. A written security agreement must be authenticated by the debtor B. There must be a financing statement filed by or for the creditor C. The secured party received consideration D. The debtor must have rights in the collateral
There must be a financing statement filed by or for the creditor
Patents, copyrights, and trademarks
Three types of intellectual property
An example of valid consideration is a promise: A. By a seventeen-year old to refrain from drinking alcohol B. To refrain from going to court C. To cook dinner if the promisor can not get around to it D. To repay a friend for the four years of free legal advice he had provided
To refrain from going to court
A soft drink manufacturer protects a closely guarded formula for a recipe. What is this recipe an example of?
Trade secret
Improper misappropriation occurs when you obtain which protected item by using improper means?
Trade secrets
Which of the following intellectual properties is protected by the Lanham Act?
Trademark
Anika is an agent of Autojor, a technology company that sells subscriptions to its cloud-based software. Anika has the general title of manager but has no express authority in her employment agreement. Anika routinely negotiates sales agreements with large companies that are clients of Autojor. Anika enters into an agreement with Pruhart Tech that is far larger than any deal Anika previously negotiated. The agreement is very poorly negotiated and will cause a huge loss for Autojor. True or False In entering into the agreement with Pruhart Tech, Anika exceeded her authority.
True
True or False At Kamal Kalani's church, the members fast and spend the entire day in prayer on Fridays. He works as a pharmacist, and many times he is the only pharmacist scheduled to work on Fridays. Based on his religious beliefs, he tells his employer that he will refuse to work on Fridays. Kamal's employer must make a reasonable accommodation for his religious beliefs.
True
True or False Diego Sousa, an employee at an online service provider, is called for jury duty in Wayne County, Michigan. His immediate supervisor, Oliver Turay, lets him know that he "must" avoid jury duty at all costs. Sousa tells the judge of his circumstances and his need to be at work, but the judge refuses to let Sousa avoid jury duty. Sousa spends the next two weeks at trial. He sends regular emails and texts to Turay during this time, but on the fourth day gets a text message from Turay that says, "Don't bother to come back." When he does return, Turay tells him he is fired. Sousa has a cause of action for the tort of wrongful discharge.
True
True/False: If an agency failed to follow proper rulemaking procedures when it issued the final rule, the rule may not be binding.
True
True/False: The Federal Register is a daily publication of the executive branch that prints (and offers online) government orders, rules, comments, and regulations.
True
True/False: When a negotiated settlement cannot be reached, the agency may issue a formal complaint against the suspected violator.
True
True/False: When regulated groups oppose a rule adopted by an agency, they can bring a lawsuit arguing that the rule was not authorized by the enabling statute.
True
What is the requirement for a federal court to hear a diversity of citizenship case?
Two different states and the suit exceeds $75,000
Patent Infringement
Unauthorized use of another's patent. A patent holder may recover damages and other remedies against a patent infringer.
Williams v. Walker-Thomas Furniture Co.
Unconscionability
Following a seller's breach, the buyer can recover the price paid: A. If the buyer cancels the contract B. Only for goods the buyer has accepted C. For all the goods the buyer was to have received, whether or not they were accepted D. Under none of the above conditions
Under none of the above conditions
An unenforceable contract is: A. Void, not a contract at all B. One that a court will not enforce for either side because of the rule of law C. Unenforceable by one party but enforceable by the other D. One that has been performed by one party but not the other E. Too indefinite to be valid
Unenforceable by one party but enforceable by the other
Which of the following is the ultimate authority in interpreting the Constitution as it applies to both federal and state law?
United States Supreme Court
Lulu has invented a piece of machinery that automatically wraps gifts. It is the first of its kind. What type of patent should Lulu apply for?
Utility Patent
An acceptance is generally considered effective: A. When a letter is received by the offeror B. When a letter is mailed C. When the offeree is silent D. Only when the acceptance is transmitted in writing
When a letter is mailed
In general, title passes: A. To a buyer when the contract is signed B. When the buyer and the seller agree that it passes C. to a buyer when the seller receives payment for goods D. Under non of the above conditions
When the buyer and the seller agree that it passes
When a destination contract does not specify when title is to pass, it passes: A. When the goods are shipped B. When the contract is signed C. When the buyer pays for the goods D. When the seller tenders delivery
When the seller tenders delivery
In addition to phrases, symbols, and designs, which of the following can also be trademarked?
Words
The federal government has set a minimum wage for all workers. But State A has enacted legislation making the minimum wage in that state lower. Is the State A legislation preempted by federal law?
Yes
Lucas lost both his legs in combat in Vietnam. He has applied for a job with Smartistry in the company's quality control lab. The job requires inspectors to randomly check products coming off the assembly line for defects. Historically, all inspectors have stood for two-hour shifts. Lucas proposes to sit in his wheelchair. The company refuses to hire him, because it says he will be less efficient. Lucas's previous employment record shows him to be a diligent, serious worker. Does Lucas have a legal right to be hired?
Yes, as long as there is a reasonable accommodation that will enable Lucas to do the job despite the disability.
An individual looks at several cell phones at a cellular kiosk. The individual chooses one and tests it. While doing so, the individual finds the camera has 7-megapixel capacity. The individual purchases the same type of phone that was tested. Once home, the individual finds that the cell phone is the identical make and model of the one that was tested, but it has only 4.5-megapixel capacity. Is the buyer likely to win a suit for breach of warranty?
Yes, because the sample model constitutes that the actual goods bought will be as good as the sample.
Thomas and Martin started working the same job at Company A at the same time and have the same performance levels. This job has a labor union. Thomas joins the union, but Martin does not. The union officials ask that Thomas get a raise, but that Martin does not. Has the union engaged in unlawful activity?
Yes, it is unlawful to discriminate against employees who have chosen not to join the union.
Lanham Act
a 1946 law that spells out what kinds of marks (including brand names) can be protected and the exact method of protecting them
In State X, plumbers must purchase a license but do not have to pass an examination. This is an example of:
a Revenue License
Administrative Law
a branch of law that governs the creation and operation of administrative agencies
Claim
a claim is a separate violation of the law
An independent regulatory agency is usually run by...
a commission or board
Alternative Dispute Resolution (ADR)
a common method of dispute resolution that avoids many of the challenges associated with litigation
Federal Arbitration Act (FAA)
a federal statute that provides for the enforcement of most arbitration agreements
Duty of Loyalty
a fiduciary duty owed by an agent not to act adversely to the interests of the principal
Mediation
a method of alternative dispute resolution (ADR) in which parties work to form a mutually acceptable agreement
Negotiation
a method of alternative dispute resolution (ADR) that retains power to resolve the dispute to the parties involved
Agent
a person who acts in the name of and on behalf of another
Comparative Negligence
a tort rule for allocating damages when both parties are at least somewhat at fault
Capacity
ability
Congress can ______________ an agency all together if it wishes.
abolish
OSHA (Occupational Safety and Health Administration)
an agency within the US Department of Labor
Arbitrator
an independent person or body officially appointed to settle a dispute
ostensibly
apparently, but perhaps not
The president has the power to ______________ federal officers and also the power to veto enabling legislation.
appoint
bargains made illegal by public law/are contrary to law
bargains that are/include: noncompete agreements, exculpatory clauses, unconscionable bargains, contracts to obstruct the public process or justice, and contracts interfering with family relations.
Courts generally hold that Article I of the U.S. Constitution is the _________ for all administrative law.
basis
All administrative agencies taken together are considered the _____________________ of the federal government.
bureaucracy
Federal administrative agencies are created:
by enabling legislation passed by Congress.
At-will employee
can be fired at any time for any reason
The EPA wants to ensure that Delmar Oil Company is in compliance with federal environmental rules regarding cleanup of oil and gasoline spills. In order to do so, it:
can conduct an on-site inspection
The Bureau of Alcohol, Tobacco, and Firearms suspects that Pawn Shoppe, Inc. is violating firearms regulations. To obtain evidence, the bureau:
can search the premises and seize evidence without a search warrant
Negligence
careless neglect, often resulting in injury
Plaintiff
civil trial
The judicial branch exercises ______________ over agency powers through the courts' review of agency actions.
control
promissory
conveying/implying a promise
Quasi Contract
court-imposed obligation to prevent unjust enrichment in the absence of a contract
Statutory Law is to legislative bodies as common law is to
courts
Intermediate Appellate Courts
courts that examine allegations concerning uncorrected errors that occurred during trials; usually called courts of appeals in state and federal court systems (BOTH FEDERAL AND STATE COURT SYSTEM!)
Administrative Agencies
created to protect a public interest rather than to vindicate private rights (OSHA, EPA, FTC)
Prosecution
criminal trial
The intentional commission of an act that a reasonable person knows would cause injury to another is known as
culpable negligence
Preemption Doctrine
derives from the Supremacy Clause of the Constitution which states that the "Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding."
The process where each party to a lawsuit tries to get information out of the other party is called
discovery
Doctrine of Transferred Intent
doctrine originating in common law under which an actor's criminal intent associated with an act against an intended victim is transferred to an unintended victim who suffers the consequences of the defendant's act
Legal Detriment
doing an act one is not legally obligated to do or not doing an act that one has a legal right to do
The U.S. Supreme Court consists of the Chief Justice and
eight associate justices
Private communications between the ALJ and any party to the agency proceedings are known as ______________ communications.
ex parte
The main difference between independent regulatory agencies and executive agencies is that:
executive agencies are subject to the authority of the president to a greater degree than are independent regulatory agencies
Agency relationship
exists when one party delegates decision-making responsibility to a second party for compensation. Either expressly or by operation of law
Bovard v American Horse Enterprises
extension of statutory illegality based on public policy
Such deference seems appropriate when applied to an agency's analysis of ____________ questions.
factual
Due Process
fair treatment through the normal judicial system, especially as a citizen's entitlement.
double taxation
feature of taxation that allows stockholders' dividends to be taxed both as corporate profit and as personal income
Title VII of the Civil Rights Act of 1964
forbids discrimination in all areas of the employment relationship
Executive agencies are often referred to as the...
fourth branch of government
Congress can limit the power of federal agencies through its _______________ authority.
funding
Nonconforming goods
goods that do not conform to the buyer's order. Under the Uniform Commercial Code (UCC), nonconforming goods can be rejected by the buyer
Equitable Remedy
granted when money damages alone or not adequate to fully compensate for a party's injuries, can be granted alone or in combination with a legal remedy, primary equitable remedies for breach of contract are specific performance and injunction
Acme Co. filed for bankruptcy with the following debts; which is the correct priority from highest to lowest? i. Wages of $15,000 owed to employees ii. Unpaid federal taxes iii. Balance owed to a creditor who claimed its security with a $5,000 deficiency owing: A. i, ii, iii B. ii, iii, i C. iii, ii, i D. i, iii,, ii
i, ii, iii
A contingent legal fee is only paid
if the lawyer wins
Following a hearing, an administrative law judge (ALJ) first issues an...
initial order
In the Chevron case, the United States Supreme Court created a standard of broadened deference to agencies on questions of legal ________________________ .
interpretation
Agency Law
is an area of law dealing with working relationships created between two parties. (Agent, Principal, and 3rd party)
An implied contract:
is one inferred by the actions of the parties
Private Necessity
is when the tort is committed to help one or a few people
Public Necessity
is when the tort is committed to protect the public as a whole from some danger. The defense of public necessity is a total defense, voiding all liability.
The FDA is investigating Shari's Cosmetics for possible violation of purity regulations. The FDA wants Yasmin, their lead chemist for the company, to testify at an administrative hearing. Yasmin refuses, so the FDA:
issues a subpoena ad testificandum
Courts historically have granted deference (significant weight) to an administrative agency's _________________ .
judgment
Which court has the power to hear a case is called
jurisdiction
Liable
legally responsible
One important difference between formal litigation in a court and an administrative hearing before an administrative law judge (ALJ) is that:
less information is admitted during an administrative hearing
stare decisis
let the decision stand
Strict Liability
liability without fault
mitigate
make less severe, or painful
The EPA conducts meetings to discuss the possibility of creating additional regulations within the next five years. Under the Government in the Sunshine Act, the meetings...
may be closed to the public
precedent
may shift or change over time
paraphernalia
miscellaneous articles, especially equipment needs for a particular activity
The Freedom of Information Act exempts records pertaining to...
national security
Before labeling a contract as being contrary to public policy, courts must carefully inquire into the
nature of the conduct, extent of public harm which may be involved, moral quality of conduct of parties in light of prevailing community standards
negligent tort
occurs when the defendant fails to act in a responsible way and thereby subjects other people to an unreasonable risk of harm
Tortfeasor
one who commits a tort
limited partnership
partnership in which only one partner is required to be a general partner
General Partnership
partnership in which partners share equally in both responsibility and liability
exceptions to the general rule that courts will not enforce illegal bargains
party withdrawing before performance party protected by statute, party not equally at fault, excusable ignorance, and partial illegality.
Appellent
person who applies to a higher court for the reversal of the decision of a lower court
Discovery Phase
phase of a trial is nonexistent or sharply reduced in arbitration (costly)
The delegation doctrine holds that Article I grants Congress the authority to delegate some of its ______________ by establishing administrative agencies.
powers
If in 1900, the Minnesota Supreme Court ruled that a minor can void a contract at any time during minority, and, in 2014, the courts in Minnesota still follow this ruling, what is this an example of?
precedent
The Fifth Amendment 3 Principal Aspects:
procedural due process, the takings clause, substantive due process
Unilateral Contract
promise in exchange for an act
A security interest is a
property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets. Such rights vary according to the type of security interest, but in most cases, a holder of the security interest is entitled to seize, and usually sell, the property to discharge the debt that the security interest secures.
pro rata
proportional, proportionally
When an agency formally creates a new rule, its first step is to:
publish a notice of the proposed rulemaking proceeding in the Federal Register
Congress has the power to "freeze" the enforcement of most federal __________________ before they take effect.
regulations
pertinent
relevant
replevy
repossess
Statue of Frauds
requires certain contracts to be in writing
False Imprisonment
restraining an individual or restricting an individual's freedom
Dormant Commerce Clause
restriction on states' authority to pass laws that substantially affect interstate commerce
repossession
retake of a something when the buyer defaults on payments
The Court's decision in the Chevron case created a new standard for courts to use when _________________ agency interpretations of law.
reviewing
Shop Right
right of an employer to use in business without charge an invention discovered by an employee during working hours and with the employer's material and equipment
exculpatory
show or declare that (someone) is not guilty of wrongdoing:
quid pro quo
something given in exchange or return for something else
Sources of Law
statutory law, regulatory law, common law
another way to describe the legislative rules that agencies create is that they are...
substantive rules
Misappropriation
the act of taking what belongs to someone else and using it illegally for one's own gain
Charges that an individual or a firm has violated an administrative rule are first brought before
the administrative law judge
The EPA and Zenith Dry Cleaners are negotiating a settlement for alleged violations of federal emissions standards. The EPA issues subpoenas duces tecum for all of Zenith's financial records for the past two years and orders Zenith to pay the costs. Zenith challenges the subpoena on the basis that:
the agency's request is unrelated to the emission violation and instead is aimed at pressuring Zenith into a settlement.
Defendant
the alleged wrongdoer
Diversity of Citizenship Jurisdiction
the amount in controversy exceeds $75,000, and all opposing parties live in different states
Fair Use
the conditions under which you can use material that is copyrighted by someone else without paying royalties
Conversion
the creditor has breached the contract and committed this tort
Opposing side
the defense
Actual Cause
the determination that the defendant's breach of duty resulted directly in the plaintiff's injury
Federal constitutional rights, especially those found in the Bill of Rights apply to the states under
the due process clause of the Fourteenth Amendment
Copyright
the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.
forfeiture
the loss/giving up of something (as penalty for wrong doing)
Bargaining Power
the pressure that a supplier or buyer can exert on a company
Litigation
the process of bringing in an court to settle a dispute
Appellee
the respondent in a case appealed to higher court
Franchises
the right to operate a business or to sell a product
Case Law
the rules of law announced in court decisions
Statutory Law
the term used to define written laws, that criminalize certain actions and spell out penalties for violation
Arbitration
the use of an arbitrator to settle a dispute
purport
to claim or appear to do something esp. falsely
Disaffirm
to give notice of refusal to be bound by an agreement
sex discrimination
treating people differently because of their sex unless a BFOQ applies
Doctrine of Equivalents
under this, a device or method can infringe on a patent if it is substantially equivalent to the patented device or method
An unenforceable contract is:
unenforceable by one party but enforceable by the other
Venturi & Company v. Pacific Malibu Development Corp.
unlicensed practitioner cannot collect fee
Trademark Infringement
use of another company's business name or logo without permission
reverse discrimination
using race or sex to give preferential treatment to some people
tenuous
very weak or slight
Expropriation
when a domestic government seizes a foreign company's assets without any reimbursement
If you are found to be strictly liable by a court, this means
you are liable for the harms you cause regardless of your fault
