LEB bdeltoro LEB 320F Unit 3

CFOs are more likely to cook the books in order to benefit themselves financially than to do so in order to benefit another.

False. Studies show that CFOs are more likely to cook the books to benefit their CEOs financially than to benefit themselves. This may illustrate the tendency people have to be obedient to authority.

Addiction is a protected disability under the ADA for current users of drugs.

False. The ADA expressly provides that a current user of alcohol or illegal drugs is not protected by law. Having the mere status of an alcoholic or drug addict is protected, however.

The Magnuson-Moss Warranty Act applies to all purchases and sales.

False. The Magnuson-Moss Act applies only to purchases by ultimate consumers for personal, family, or household purposes and not to transactions in commercial or industrial settings.

An invention must be manufactured in order for the inventor to file a patent application on the item.

False. The applicant is not required to have actually made the invention physically in order to file a patent.

In a potential unilateral contract situation, the offeror may always revoke the offer at any point prior to the act being completed.

False. The most widely accepted of the non-traditional views is that where the act is one that of necessity will take a period of time to complete, the right of revocation is suspended once the offeree starts to perform and remains suspended until the offeree has had a reasonable time to complete the act.

The parol evidence rule prevents any oral agreements that add to, or conflict with, the contract from being adduced as evidence in court if those oral agreements were made subsequent to the signing of the contract.

False. The parol evidence rule prohibits a party to a written contract from unilaterally introducing either oral or written statements or agreements made at or prior to the time the written contract was made which either conflict with, or add to, the clear, unambiguous terms of the written contract.

An individual attempting to make a case for disparate impact can compare employment statistics of the company with general population statistics when the job requires special qualifications.

False. The plaintiff would have to compare the employment statistics with the statistics of the population qualified for that field.

If a state law is more stringent than a federal law concerning the same subject matter, it is invalidated due to the principle of direct conflict.

False. The principle of direct conflict does not void the law just because the state provision deals with the same type of activity. Moreover, the mere fact that a state law is more stringent than a similar federal law does not automatically make the state law void.

There are generally three conditions that a challenger must prove in order to make a case for implied preemption: the regulation is relatively comprehensive, there is a need for uniform national regulatory policy in the area of the regulation, and the regulation is outside of the state's police power regardless of the issue of preemption.

False. There are only two conditions for implied preemption to be found in most circumstances: the regulation is relatively comprehensive and there is a need for uniform national regulatory policy in the area of the regulation.

Motivated by a desire to make the world a better place, GAP and Nike sent employees to foreign production plants in order to make sure that workers there were treated ethically.

False. These companies took these steps in the face of criticism and boycotts.

All contracts for a sale of goods exceeding $500 must be in writing in order to be enforceable.

False. This is general rule but a verbal contract exceeding $500 can be binding if 1) seller has started producing goods, 2) payment/goods have been made and accepted 3) something in writing has been sent and hasn't been rejected 4) oral agreement existed

The Social Contract theory of business argues that a corporation is not mandated to contribute positively to society outside of its economic effects.

False. This theory argues that the corporation has a contract-like obligation to contribute positively to society because society allows for the creation of the corporation

If a party is forced into a contract and "not given a meaningful choice", a court is likely to find the contract substantively unconscionable.

False. This would be an example of procedural unconscionability. Substantive unconscionability occurs when the terms of the contract are "oppressive or unfair". Most courts hold that a contract must be both procedurally and substantively unconscionable in order to be unenforceable on unconscionability grounds.

Title VII prohibits discrimination against homosexuals.

False. Title VII does not prohibit discrimination based on homosexuality. However, sexual harassment, whether of gays or straights, is prohibited by Title VII.

Trademark infringement can happen only if a defendant intentionally copies another's trademark.

False. Trademark infringement can occur even if the defendant did not intend it, or even if the defendant didn't know about the plaintiff's mark.

A merchant's verbal promise to keep an offer open for two weeks, in the absence of paid consideration, is binding under Article 2.

False. Under the UCC's firm offer rule, merchants can only be forced to hold an offer open if the offer to keep it upon is written.

A contract for the sale of corn is not considered a sale of goods, for the purposes of Article 2, if the corn will be severed from the land by the buyer.

False. Under § 2-107 of the UCC, a contract for the sale of growing crops or timber is a contract for the sale of goods, regardless who is to sever them from the land.

Under the UCC, all major details of an agreement must be specifically stated for that agreement to be enforceable.

False. Under § 2-204(3) of the UCC, so long as the court finds that the parties intended to make a binding contract and the agreement and the surrounding circumstances give the court a reasonably certain basis for granting an appropriate remedy, a sales contract is enforceable even if one or more terms are left open. The UCC has "gap-filler" provisions that can fill in such terms as price and delivery.

A UCC contract must have all details, such as delivery date and the exact price, included in order to be considered complete.

False. Under §§ 2-204, 2-305, 2-309, and 2-310 of the UCC, certain details can be taken care of by gap-fillers. This includes delivery date and exact pricing.

Making a payment or acknowledging a debt revives the debt and resets the statute of limitations, even if the debt has been discharged by bankruptcy.

False. While making a promise to pay a debt after the statute of limitations has expired typically revives the debt and resets the statute of limitations, this exception does not apply to debts that have been discharged in bankruptcy.

What is the Patent cooperation treaty?

If an inventor files in one member country, then indicates within one year that this is an international application, he may have up to 30 months total (18 months added to the first 12) to file applications in other member countries

What is the Doctrine of Equivalence?

If another invention contains substitutive elements, it can infringe under the doctrine of equivalence (DOE)

What constitutes a literal infringement?

If another invention has exactly all elements on the claim, or if it has those elements in the claim plus one or more additional elements it literally infringes. If it does not contain one of those elements, it does not literally infringe.

Types of Trademarks:

Fanciful, arbitrary, suggestive, descriptive, generic

What is a person's liability for a contract if they were insane in fact?

If at the time of agreement they were incapable of understanding the nature and effect of the particular agreement, then the contract is voidable

By operation of law (contract) -

If before an offer is accepted, one of the parties dies or is adjudicated insane, the subject matter of the offer is destroyed, or the subject matter of the offer becomes illegal.

What is a minor's liability on contracts involving misrepresentation of age?

If minors lie about their age in order to induce adults to deal with them, they are guilty of a kind of fraud, and the courts of most jurisdictions will deny the protection that otherwise would be given

Minors' Liability on Contracts Involving Misrepresentation of Age:

If minors lie about their age in order to induce adults to deal with them, they are guilty of a kind of fraud, and the courts of most jurisdictions will deny the protection that otherwise would be given. Some states have provided by statute that a minor who has misrepresented his or her age is liable on the contract exactly as if he or she were an adult. Most states, however, have left the matter up to the courts, and a spate of rules has resulted. Without attempting to consider all of them, we can make a few generalizations

What is a unilateral mistake? Is rescission allowed in this case?

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 mistake at the time the contract was made

What is the UCC Confirmation rule?

If only one side signs a memorandum of an oral agreement it can be used in court to hold them to the agreement if the sender signed the confirmation and the recipient didn't object within 10 days

What is a challenge for a cause?

If questioning indicates that a particular person probably would not be capable of making an impartial decision an attorney makes a challenge for cause that dismisses the prospective juror from duty

When is an oral contract for real estate enforceable?

If the buyer, in reliance upon the oral contract, has (1) paid all or part of the consideration for the land, (2) taken possession of the land, and (3) added substantial improvements to it, the contract is enforceable. This is because the buyer's actions are fairly good evidence that an oral contract has, in fact, been entered into. Same as estoppel.

Brooks Cotton v. Williams - premise

Farmer Williams orally agrees to sell 1206 bales of cotton to Brooks Cotton but cannot deliver the entire order. Brooks Cotton sues. Williams says it's unenforceable because because it was not in writing as required by the UCC's statute of frauds provision. However, Brooks Cotton sent written confirmation of the alleged agreement to Williams within 30 days after the oral agreement. Because Williams did not object or respond to the written confirmation, the oral agreement for sale of goods is enforceable, but only if both parties to the contract are merchants. The trial court held in ruling on a summary judgment motion that Williams was a merchant. He appealed.

True or False: Federal District Courts are courts of general jurisdiction.

Federal District Courts are courts of limited jurisdiction. A Federal District Court must have Subject Matter Jurisdiction in order to hear a case. The correct answer is: False

By what law was the pretrial discovery stage established?

Federal Rules of Civil Procedure were adopted in 1938

Federal Law

Federal laws come from the government of the United States

How does intent alter remedies in a patent infringement case?

If the court concludes that the defendant willfully infringed it may multiply the plaintiff's damages by a factor of up to three, and may award attorneys' fees

What are the requirements of an offer?

If the court finds that both parties' apparent intentions were the same then there is a contract, there is a reasonably definite indication of what the offeror and the offeree are to do, and there is a communication of the proposal to the intended offeree

What is contempt of court? What is the outcome?

If the defendant is charged and refuses to comply with a judgement they can be fined or imprisoned for contempt of court.

Sorrell v. IMS Health Center focused on what?

First Amendment freedom of speech

Three primary approaches to resolving an ethical issue:

First is the utilitarian (teleological) approach. Second is the rule-based (deontological) approach Third is virtue ethics,

Process of a complaint

First, a complaint is filed by a plaintiff and amounts to a list of allegations. Next, once the defendant receives the complaint they either file a motion to dismiss (arguing there is no legal basis for recovery by the plaintiff), answer (deny or admit to allegations), or default judgement (entering a default judgement in favor of the plaintiff if the defendant fails to make a response time)

There are two methods of acquiring trade secrets that are not misappropriation:

First, if someone else develops the same knowledge on its own, there is no misappropriation. Second, there is no misappropriation if (1) the information is found in a product, and (2) someone else lawfully acquires the product and reverse engineers (disassembles and works backwards) to discover the trade secret.

What are the rules regarding a service of summons by long-arm statutes?

If the defendant is not in the forum state they only must have had "substantial prior contact" with the forum state, meaning that they have done business or committed a tort within the forum state. If this is true a summons can be sent to a central office in the forum state.

To be patentable, an invention must meet several basic criteria:

First, it must be the right kind of subject matter. Machines, man-made materials, products, and processes can be patented. One cannot patent natural materials Second, an item must have utility or accomplish something useful. However, it does not have to be very useful (many toys and novelty items of quite limited societal value have been patented). Third, an invention cannot be obvious or more than a trivial change to an existing invention. Fourth, an invention must be novel, that is, one that is not currently in use and that has not been detailed in print.

What is a reply?

If the defendant raises new matter—additional facts— in the answer, the plaintiff must file a reply. The plaintiff either denies or admits these new facts

What are the penalties of violating the Securities Exchange Act for an individual? A corporation?

For an individual: 20 years, and/or a fine of up to $10 million For a corporation: $25 million

What are defenses against infringement?

For example, a nonprofit library may make a copy of a work for archival purposes. An owner of a lawful copy of computer software may make a copy that is necessary for the software to be used (such as copying from a CD to the computer's hard drive), as well as one backup copy. It is not legal to give copies of a software program to friends and family.

Promises made after a statute of limitations has run: (Consideration)

For nearly everything that does not involve a death, eventually it is too late to commence legal action. If you wait too long to collect a debt, for example, a statute of limitations will run and you have no further ability to file a lawsuit over the debt.

What is the UCC's view on the battle of the forms?

Forms do not have to mirror one another; presumes instead that an offeree who responds with varying terms intends to contract, unless he clearly indicates that he intends a counteroffer instead or if key terms such as price or quantity are altered

Garwood Packaging PNC v. Allen & Co. - premise

GPI is broke and Allen tells them that they will finance 2 million if GPI can find another 2 million in finance. GPI found another financer and GPI's execs moved, forgave personal loans, and incurred other costs. Allen decided not to invest. GPI sued Allen on a promissory estoppel theory. The trial judge granted summary judgment to Allen, and GPI appealed. Reasonable reliance is seen as nearly as good a reason for thinking there really was a promise as bargained-for reliance

Virtually all important cases involving contract, criminal, corp law start here

General trial courts (state)

Does the judge allow illegally obtained evidence?

Generally yes unless the opposing attorney objects or can convince the judge to order the other side not to present the evidence

What is a guilty mind or mens rea?

Generally, a defendant is not guilty unless his or her guilty act is coupled with a guilty mind. Intent is often a difficult element to prove beyond a reasonable doubt.

Otis Engineering v. Clark: *Argument* =

Generally, one person is under no duty to control the conduct of another even if he has the practical ability to do so. Yet, certain relationships do impose, as a matter of law, certain duties upon parties.

What can never be trademarked?

Generic terms Ex: Kleenex doesnt want to be generic term for tissues

SEC v. Ginsberg - premise and original decision

Ginsburg made calls to his brother three times, ad right after his brother bought stock before it shot up. SEC brought insider trading charges. District judge entered a judgement as a matter of law due to insufficient evidence. The SEC appealed. This case was decided using the precedence established by Burrell v. Bd. Of Trustees, a case of employee retaliation.

SEC v. Ginsberg - outcome

Given that employee retaliation and insider trading cases are quite dissimilar, the court ruled that they should have compared to a more relevant case such as Adler where the JMOL was granted. Appeal reversed.

What is covered under an implied warranty?

Goods are expected to be fit for the ordinary purpose for which such goods are used and must meet the reasonable expectations of the consumer

What is the open delivery provision?

Goods should be delivered to the buyer at the seller's place of business, residence, or some specified other place

Donee beneficiaries:

Grandpa's son Al makes a deal with Lawn service to pay them to mow his grandpa's lawn. Grandpa is not owed a debt but he is an intended donee beneficiary and has rights if they don't mow his lawn

What does not tend to show bad faith in terms of cyber-squatting?

If the domain name consists of the defendant's name, this is considered to be a factor proving that there was good faith and not purposeful cyber-squatting.

What is the Experimental Use exception in delayed filing?

If the inventor's use was public, but was being done for genuine experimental purposes to ascertain whether the invention works as intended, the one-year clock is postponed for a reasonable time to allow for this experimentation. an inventor should maintain control over the patented item, prohibit those helping with the testing from disclosing it, and monitor its use closely.

What are the lessor's remedies under the UCC article 2A?

If the lessee breaches the lease by failing to make payments when due, the lessor can cancel the lease, repossess, and collect damages

What is mutual rescission?

If the parties to the original contract expressly or impliedly rescind (cancel) it before it is fully performed, and enter into a new contract involving the same subject matter, the new contract is enforceable

When is an advertisement held as an offer?

If the quantity of item is clearly limited, then the advertiser has eliminated any worry about unlimited liability and the ad can be treated as an offer("Three 2013 Porsche 911 Carreras at $92,395.00 each, on sale Saturday only while they last!"), when a seller specifies a special method of sale (first come first served), or advertisements of rewards (lost dog; $100 for return)

What is an intoxicated person's liability on a contract? What if consideration has been provided?

If the required degree of intoxication is found to have existed, the intoxicated person's right to disaffirm, upon regaining sobriety, also substantially parallels that of a minor. Intoxicated persons are required to return the full consideration as a condition of disaffirmance in all cases.

What is procedural due process? When is it applicable?

Guarantees that the government will follow fair procedures before taking certain actions against an individual or company. Applicable only when government actions are adjudicative (when a court applies rules to the conduct of a specific person or company), not legislative (those in which a legislature or other government agency makes rules )

What is a writ of execution?

If they refuse to pay a valid judgement, the court can issue a writ of execution which empowers lawmakers to seize the defendant's property and sell it at auction until enough money is raised to satisfy the judgement

What is course of dealing?

If they've dealt with each other before, they should have reasonable expectations of how the other will act in a contractual situation.

Is an oral promise binding?

If written form was intended as the final expression of the parties' agreement, any oral statement in contradiction of the written terms will not be admissible as evidence.

Intoxicated persons:

If you make a foolish agreement while buzzed, you are probably stuck with it. If you make an agreement while extremely drunk, as in about to pass out, you might have formed a voidable contract.

Examples of consideration (cases):

Hamer v. Sidway demonstrates basic elements of consideration Quarture v. Allegheny County examines the common law approach to evaluating these agreements. The UCC contains different rules that effectively turn off the requirement that modification contracts be supported by consideration.

Hartland Computers Leasing Corp v. The Insurance Man Inc - premise

Hartland leases a computer to The Insurance Man (TIM). When the computer stops working TIM stops paying which is a breach of contract. Hartland sues for the payments not made. The trial judge concludes this is an adhesion contract, disregards the disclaimers of liability, and rules against Hartland. Hartland appeals.

Oxford Healthcare plans v. Sutter - premise

Healthcare provider Sutter files a class action suit when the network of patients, Oxford, doesn't pay. Referred to arbitration because of a clause in the contract. Oxford, not wanting to answer to all providers, filed a motion in federal court to vacate the arbitrator's decision on grounds that he had "exceeded [his] powers" under the Federal Arbitration Act (FAA). However, so long as an arbitrator "makes a good faith attempt" to interpret a contract, "even serious errors of law or fact will not subject his award to vacatur." The Supreme Court granted a certiorari.

What are appellate courts? How many appellate courts are there per state?

Hear appeals from judges entered by lower courts. Decide legal questions; don't hear testimony or entertain new evidence. Some states only have one appellate court (the supreme court) but most have a layer of appellate courts between trial and supreme.

What is the Sarbanes-Oxley Act of 2002 (SOX)? Why was it adopted?

Imposed rules for corporate disclosure, governance, and audit firm practice in any company that lists shares on the american stock exchange. Adopted after Enron.

Examples of strict liability

In Knight v. Just Born, Inc., the plaintiff eats a Hot Tamale candy that is much hotter than expected. Red Rose Transit Authority v. North American Bus Industries illustrates the economic loss doctrine, which often prevents tort lawsuits in favor of contract lawsuits in cases that do not involve physical injuries.

True or False: Personal jurisdiction over certain cases, such as bankruptcy cases, can be established simply by having property relevant to the suit within the jurisdiction of the court.

In Rem jurisdiction, which can be established by having property within the jurisdiction of the court, can satisfy jurisdictional requirements for a case. The correct answer is: True

Hamer v. Sidway - outcome

Homer asserts that the promisee, by refraining from the use of liquor and tobacco, was not harmed, but benefited and unless the promisor was benefited, the contract was without consideration. However, it is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement, and now, having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not inquire into it. Judgment reversed.

What is a bilateral contract?

"a promise for a promise."

What is the Digital Millennium Copyright Act (DMCA)?

"anti-circumvention" provisions - when an owner of copyrighted material in digital form uses a technological measure (such as encryption, initialization codes, etc.) and someone else circumvents this protective measure, (such as decrypting the encryption), there is a violation of the DMCA even if it's being used in legal ways; highly criticized

What does the Federal Trademark Dilution Act (FTDA) protect?

"famous" trademarks only.

What is an exempted wagering contract?

"friendly bets" (those defined as not producing substantial sources of income), and some lotteries operated by religious or charitable organizations

What is misappropriation?

"improper conduct", even if an act isn't inherently illegal, it can be considered misappropriation if information is obtained or disseminated in improper context if there is an implied or express obligation not to do so Ex. Employees moving to another company and sharing their old company's cement recipe, taking aerial photos of a construction site

What is the contract clause? To whom does it apply? Why does it exist?

"no State shall... pass any ... Law impairing the Obligation of Contracts. . . ." applies to state, not federal. Intended to prevent states from changing the terms of existing contracts by passage of subsequent legislation

What's an example of a legal restriction on trade? Under what conditions is it legal?

"noncompetes", though they restrict trade, are not illegal and are lawful if certain conditions are met: (1) The agreement must be of an "ancillary" nature. (2) The promisee must have a legitimate 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 reasonably necessary

Rex wrecks his car in a collision with Collison. Much later, in a negligence lawsuit, the jury determines that the accident was 67% Rex's fault and 33% Collison's fault. Rex will be able to recover some damages if he lives in a state that follows...

"pure" comparative negligence If a person is over half at fault, he cannot recover in a modified comparative negligence system, and if a person is even 1% at fault, he cannot recover in a contributory negligence system.

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"—in other words, in contracts involving goods or services that are essential to daily life.

What types of warranties does the Magnuson-Moss Warranty Act cover?

(1) any written affirmation of fact made by a supplier to a purchaser relating to quality or performance of a product and affirming that the product is defect free or that it will meet a specified level of performance over a period of time (2) a written undertaking to "refund, repair, replace, or take other action" if a product fails to meet written specifications.

What constitutes a disclaimer on an implied warranty?

(1) conspicuous use of "merchantability," "with all faults," or "as is" language, (2) the buyer's examination of the goods or deliberate refusal to examine them at all (3) custom and usage - Implied warranties are sometimes excluded by a custom that has been established between the contracting parties

What duties are not delegable?

(1) duties arising out of contracts which expressly prohibit delegation, and (2) contracts in which the obligee has a "substantial interest" in having the obligor-delegator perform personally (the performance of personal services—such as those of a teacher, physician, or lawyer—are clearly non-delegable without consent)

What does a copyright give permission for?

(1) make copies ("reproduction" right), (2) create "derivative works", (3) publicly distribute copies of the work, (4) publicly display the work, (5) publicly perform the work, or publicly perform the work by digital audio

What are the requirements of an acceptance?

(1) must demonstrate a definite, present intent to accept the offer, (2) must be unconditional and not add any terms to the offe, (3) must be legally communicated to the offeror or to the offeror's agent.

What must a written memorandum contain in order to be satisfy the statute of frauds?

(1) names of both parties, (2) the subject matter of the contract, (3) the consideration to be paid, and (4) any other terms that the court feels are material under the circumstances. Must contain two separate writings and be signed by the party against whom it is enforced.

What can the court do if a contract is found unconscionable?

(1) refuse to enforce the contract, or (2) enforce the remainder of the contract without the unconscionable clause, or (3) limit the application of any unconscionable clause so as to avoid any unreasonable result

What three things must a prosecutor in a criminal case do to obtain a valid conviction?

(1) show that the defendant's actions violated an existing criminal statue, (2) prove beyond a reasonable doubt that the defendant did do the act alleged, and (3) prove that the defendant had the requisite intent to violate the law

What are the conditions of an undue influence case?

(1) 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, and (2) that the dominant party used this power to take advantage of him or her

What determines if something is a trade secret?

(1) the extent to which the information is or is not known outside the company; (2) how easy or difficult it would be for someone else to independently develop the information or to acquire it properly; (3) the value of the information to the company; (4) the amount of time and money it took the company to create the information; (5) how well the company has protected the information.

What determines if something is a trade secret?

(1) the extent to which the information is or is not known outside the company; (2) how easy or difficult it would be for someone else to independently develop the information or to acquire it properly; (3) the value of the information to the company; (4) the amount of time and money it took the company to create the information; (5) how well the company has protected the information.

What are the elements that must be proven to bring a trade secret case?

(1) the info was a trade secret, (2) the plaintiff took reasonable measures to protect this secret, (3) and the defendant improperly acquired and used the info

Today, most courts use the following factors in deciding which state has the most significant relationship to the occurrence and the parties: (In Tort Cases):

(1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered

Can a third party to a contract enforce that contract?

(1) where it appears that the contract was intended to benefit the third party (2) where one of the parties, after making the contract, assigned (transferred) his or her rights to a third party

The 2011 American Invents Act (AIA)

(Obama signed) - governs patent law 20-year, non renewable, exclusive right to make, use, or sell the patented invention

Peremptory Challenges -

(lawyer doesn't have to state a reason, just dismiss someone) lawyers can send a limited number of prospective jurors home without stating any particular reason

Challenge for cause -

(tells judge someone is biased and shouldn't be on jury) attorney tries to convince judge that prospective juror will likely not be fair and impartial

Fraserside IP,LLC vs. Youngtek Solutions:

*Facts* 2 internet pornography businesses. P sued D for trademark and copyright violation. *Issue* Does an Iowa court have personal jurisdiction over a Cypress-based Inc.? *Rule* General Personal Jurisdiction requires "continuous and systematic" contact *Analysis* Youngtek has no offices, no employees, no phone numbers, etc. Clicks on its passive website by Iowans don't do it. *Solution* Specific personal jurisdiction requires that P's injury arise from D's activities in the state or uniquely or expressly directed toward the state. D no more directed its activities at Iowa than at Uzbekistan - suit dismissed

Most courts will give effect to exculpatory clauses where they involve only ____________ _____________

*recreational activities*, such as where people go rafting, sky-diving, or horseback riding, or other activities that are completely optional on the part of the participant and thus do not affect the public interest

Federal courts

- Courts of limited jurisdiction - Federal Question Cases Plaintiffs base their claim on federal law - Diversity of Citizenship Cases Plaintiffs and Defendants live in different states and the plaintiff seeks at least $75,000

Requirements/defenses to negligence torts:

- Duty of care - standard legal duty is to act as a reasonable person - Proximate causation and injury requirement in negligent cases - Defenses might include statute of limitations being expired, also if defendant can demonstrate that a plaintiff shares some comparative fault for his own injury

A company can get away with protecting themselves from negligence IF:

- Language in contract is posted conspicuous and clear - Must be written and displayed clearly

Void Contract -

- Outright missing one of the four requirements of a contract

In copyright cases, the plaintiff must prove:

- Ownership of copyright of a particular work - Defendant is copying a substantial, legally protectable portion of the work

Leonard vs. PepsiCo: *background* =

- Pepsi's commercials (1995) → point system where you accumulate points by buying Pepsi - Pepsi made it look like you could get a jet if you got enough points (7 million points) - Lines of advertising and see if there is a real offer being placed/a contract having been made

Criminal law includes:

- Some wrongful acts are of dual nature - both criminal and civil penalties - Someone committed a crime against the state - Prosecutor (representative of the government) and a defendant - Penalty includes jail time, a government imposed fine, probation, community service

Integrated Cash Management (ICM) v. Digital Transactions Inc. - premise

ICM develops software that is customized to meet its customers' needs. Newlin and Vafa work for ICM. They leave and begin working at DTI. They take some software with them without ICMs consent or knowledge. They did not use the code but copied ideas from it. The court found them guilty of misappropriation of trade secrets. They appealed.

Court system pyramid:

- Top of the pyramid: Supreme Court - Middle of the pyramid: Intermediate Appellate Courts - Bottom of the pyramid: District Courts (starts here & moves up)

Appellate Courts: (State)

- all states have one or more, which hear appeals from judgments entered by the courts below - in some states only one usually called supreme court - decide legal questions, do not hear testimony or entertain new evidence

The US court of appeals for the Federal Circuit hears appeals from...

- appeals of all patent application rejected - appeals from patent infringement cases from US district courts - appeals from several specialized courts

Legal trends related to an increasing awareness of the massive costs of white collar crime:

- it has become increasingly common for corporate employees to pay heavy criminal fines and face lengthy jail sentences for crimes committed at work - costs around $100 billion per year. - And business entities themselves are often counted as "people," at least for the purpose of facing criminal prosecutions

Common law elements:

- prior to formal government systems, no legislature, or parliament. --> Laws created by judges, philosophers, etc would settle disputes. Carries same meaning as "precedent," "stare decisis (case law, judge-made law, unwritten law)

Milliken v. Jacono: *Outcome* =

- they did not conceal or fail to disclose a material defect in the property, and there is nothing to prove that knowledge of this murder/suicide would decrease the value of the house - none of the other elements if fraud can be proven - Defendant sold house to plaintiff without telling them that a murder-suicide happened there, so plaintiff sued saying the failure to disclose breached Real Estate Disclosure law and was common fraud - Defendant filed MSJ and was granted, plaintiff appealed - Court affirmed trial court's decision to grant MSJ

Integrated Cash Management (ICM) v. Digital Transactions Inc. - outcome

ICM had a trade secret and took measures to protect it including an NDA signed by both Newlin and Vafa. They also were not supposed to work for six months after leaving ICM. Affirmed

What cannot be copyrighted?

Ideas or underlying concepts, facts, utilitarian objects, data, systems, methods of operation

What is protected under copyright

Ideas that exist merely in someone's mind are not yet protected. **A creative work must be stored in a tangible medium to be copyrighted

4 Elements of a valid contract:

1) Agreement (Mutual Assent): when two people agree on terms of a deal, "meeting of the minds", doesn't require 100% agreement on all details, just awareness that they are entering contract 2) Consideration: contract has to be about something of value 3) Capacity: both parties need to be of mental capacity to enter a contract. Three primary reasons: minority, mental infirmity, intoxication 4) Legality: has to be legal, cannot agree to anything illegal

2 types of sexual harassment

1) Quid pro quo ("This for that") - Sexual harassment exists when a supervisor, owner, or other "boss-type" person makes unwelcome sexual advances and says or implies that a tangible job benefit is on the line. In one early case, a manager threatened a subordinate with a loss of health coverage if sexual advances were rejected. 2) Hostile work environment - Sexual harassment involves severe and pervasive gender-based hostility. Conversations about sex, jokes with a sexual theme, and pornographic images are among the things that can lead to such a claim, though they are actionable only if "severe or pervasive."

4 key provisions of Article 2 of the UCC:

1) contract formation 2) contract enforcement 3) contract interpretation 4) duty of good faith

Agents are usually personally liable:

1) if they make a contract and fail to notify the third party that they are acting on behalf of an agent at all 2) if they do not disclose the principal's identity. 3) if they claim to be acting on behalf of a principal that does not exist.

Evaluating if a principal is liable for an agent's tort:

1) whether employee or independent contractor 2) whether he was acting in scope of his employment 3) employees usually not liable for the criminal acts of the employees, even if they occur within the employee's scope of employment, unless a statute directly places liability for a specific crime on the superior or does not require a showing of intent.

To win a conviction, a prosecutor must generally demonstrate beyond a reasonable doubt the following:

1)A defendant's actions violated a criminal statute. 2)The defendant committed the illegal acts beyond a reasonable doubt 3)The defendant intended to violate the law.

After all questions, lawyers have *2 tools* they can use to prevent a prospective juror from being seated on the jury:

1. Challenge for cause 2. Peremptory Challenges

Most state courts fall into three general categories:

1. Courts of limited jurisdiction 2. General trial courts 3. Appellate Courts (which frequently exist at two levels)

Most state courts fall into three general categories:

1. Courts of limited jurisdiction 2. general trial courts 3. appellate Courts (which frequently exist at two levels)

Describe things that organizations can do to encourage their employees to act ethically:

1. Firms can develop an ethical corporate culture 2. Firms can hire ethical people. 3. Firms should treat employees well 4. Firms should structure incentives wisely

What are the three circumstances under which oral contracts will be enforceable despite absence of a writing?

1. If the oral contract is for goods to be specifically manufactured for the particular buyer, the goods produced are not suitable for sale to others in the ordinary course of the seller's business, and the seller substantially started the manufacture of these goods. 2. If the defendant admits in court that a contract for sale was made 3. An oral agreement will be enforced to the extent that payment has been made and accepted or that the goods have been received and accepted

What are the three general categories of provisions contained by the constitution?

1. Organizing the government into three branches 2. Delineating the authority of the federal and state governments 3. Protecting the rights of individuals and businesses through power limitations on the government

What are the three standard elements of a guaranty contract?

1. the guarantor promises to pay the debtor's obligation if the debtor does not. In other words, guaranty contracts occur in situations of "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, it 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

Appellate Courts: (Federal)

13 US courts of appeal 11 of these located in circuits around country, have jurisdiction to hear appeals from the district courts located win the states Each of 11 also hears appeals from rulings of fed admin agencies US court of appeals for DC have appeals from here

How many Federal Appellate courts are there? Where are they located?

13; 11 are in circuits across the US and have jurisdiction over several states. The other two are: The U.S. Court of Appeals for the District of Columbia - hears appeals from the federal district court located in DC and from rulings of federal administrative agencies U.S. Court of Appeals for the Federal Circuit - hears appeals from rejected patents or patent infringement cases

Civil Rights Act

1964 This law prohibits employers, including private organizations like corporations, from discriminating on the basis on "race, color, religion, sex, or national origin."

Bilateral Contract =

2 people exchange promises

How soon after a claim is filed must a defendant answer?

20 days

The term of a patent:

20 years from original applications* Non-renewable - after expiration goes into public domain

Fred took a photograph of a bright light in the sky in 2005. Five years later, in 2010, it generated significant interest when it was included in a television special about UFOs and alien visitors hosted by the guy who played Commander Riker on Star Trek. In 2012, Fred passed away. When will the copyright on Fred's photo expire?

2082 - (Copyrights like this one last for the lifetime of the creator of the work plus 70 years)

What do articles 2, 3, 4-8, and 9 of the UCC cover?

2: contracts for sales of goods in the US 3: law of commercial paper 4-8: duties that exist between depositary and collecting banks and the transfers of documents of title 9: secured transactions, which arise when creditors seek to retain a security interest in goods physically in the possession of a debtor

How many judges are usually in an appellant case?

3 judges or panels of 3 judges.

Kelo v. City of New London involves what?

5th Amendment's *Takings Clause*

How many jurors are on a panel?

8-12

Creditor beneficiaries:

: Al owes Betty $100. Al makes this agreement with Carl: "I'll mow your lawn while you are on vacation, if you'll pay Betty $100." Betty is the creditor beneficiaries because it is stated she would benefit from the agreement.

Which of the following are specifically required for a contract modification to be valid under the common law? Select one: a. There is consideration for the new contract. b. The modification is in writing. c. Both A and B d. None of the Above.

A

Which of the following does not tend to show bad faith in terms of cyber-squatting? Select one: a. The domain name consists of the defendant's name. b. The defendant has given misleading contact information when applying for the registration of the domain name, or has intentional failed to maintain accurate information for contacting him. c. The defendant has offered to sell the domain name it registered to someone else without having made a legitimate business use of it, and without any apparent intent to make a legitimate business use of it. d. The defendant's prior conduct shows a pattern of registering or acquiring domain names the same as or confusingly similar to the trademarks of others.

A

Which of the following is not a circumstance which courts will often take into account when deciding what reasonable people in the circumstances probably would have intended regarding a contract? Select one: a. Evidence from the conduct of a party that is not engaged in the same trade. b. Evidence from the conduct of the parties both before and after the alleged agreement was made. c. A well-established custom in the industry in which the parties are members, assuming that the parties have not stated otherwise in their transaction. d. Evidence of a custom that these parties may have established between themselves.

A

Which of the following is not a classification of a trademark? Select one: a. Accurate. b. Arbitrary. c. Descriptive. d. Generic.

A

Which of the following is not a label used to identify the different level of duty a landowner owes to a person on his property? Select one: a. A visitor. b. A trespasser. c. A licensee. d. An invitee.

A

Which of the following is not a level of protection against unreasonable distinctions the Supreme Court has identified? Select one: a. Minimum Scrutiny. b. Rational Basis. c. Strict Scrutiny. d. Intermediate Scrutiny.

A

Which of the following is not a necessary element to establish a firm offer? Select one: a. The offer must be accepted by a merchant. b. The offer must be to buy or sell goods. c. The offer must be written and signed by the offeror. d. The offer must give assurance that it will be held open.

A

Which of the following rights granted by the Bill of Rights has been incorporated under the doctrine of incorporation? Select one: a. The right to an attorney in a criminal case. b. The right to indictment by a grand jury. c. The right to a jury selected from residents of the state and district where the crime occurred. d. The right to protection against excessive fines.

A

Which of the following transactions would not be within the scope of Article 2 of the UCC? Select one: a. A leasing contract for an apartment. b. Buying a car. c. Buying a cell phone. d. A contract to buy coal.

A

Which of the following would be actionable under the Lanham Act, assuming all are false? Select one: a. Product A will help you lose 5 pounds in 5 weeks! b. Product X will let you fly! c. Product Z is America's Favorite Drink! d. None of the above.

A

Whom among of the following would be protected under the ADA? Select one: a. A person with HIV. b. Homosexuals. c. Exhibitionists. d. Kleptomaniacs.

A

Battery

A battery is a harmful (for example, a punch in the face) or offensive (for example, an unwelcome sexual contact) bodily contact

Tiffany v. Boston Club - premise

A club named Tiffany is sued for using the name Tiffany.

What contracts are required to be in writing by the statute of frauds?

A contract calling for the sale of an interest in land (including mortgages and easements), a contract that cannot be performed within one year of its making, a promise by one person to pay the debt of another, a promise made in consideration of marriage, or a promise by the administrator or executor of an estate to pay a debt of the estate out of his or her own funds

Under the UCC when must contract for the sale of goods be written? Who must sign this agreement?

A contract for the sale of goods for a price of $500 or more must be in writing to be enforceable. The writing must be signed by the party against whom enforcement is sought.

Negotiated contracts v. contracts of adhesion

A contract of adhesion is not negotiated, but is presented on a take-it-or-leave it basis, usually perfectly enforceable, but on occasion thrown out if courts deem them to be unconscionable

True or False: Precedent set by other states (such as Oklahoma) is mandatory authority which a Texas state court must follow.

A court does not have to follow the precedent from a higher court if the higher court is not directly above it. This means that Texas courts do not have to follow Oklahoma precedent, even if it is the Supreme Court of Oklahoma. The correct answer is 'False'.

What is Forum Non Conveniens? What are reasons a court might choose to enact this? Where can it be applied?

A court with both subject matter and personal jurisdiction may decline to exercise them if another court, more conveniently connected to the suit, also has both types of jurisdiction. Ease of access to sources of proof, costs of obtaining witnesses' attendance, the possibility of a view of the site of the accident, and the convenience of the parties must be considered. Can be applied internationally

True or False: It is generally easier for a plaintiff to win on summary judgment than a defendant.

A defendant moving for summary judgment only needs to prove that there is no genuine issue of material fact while a plaintiff must produce evidence strong enough to prove all elements of the claim, the defendant failed to present evidence that creates any doubt about any elements of the claim, and the defendant has failed to present evidence sufficient to create a genuine issue regarding an affirmative defense. The correct answer is 'False'.

Elements of a typical crime:

A defendant's actions violated a criminal statute. Crimes were once defined by common law doctrines, but no longer. Almost all criminal law is now statutory. The defendant committed the illegal acts beyond a reasonable doubt. Merely thinking of committing a crime is generally insufficient to demonstrate a guilty act, but taking a step towards committing a crime usually counts. The defendant intended to violate the law. To some degree, defendants must be shown to have a "guilty mind." Innocent mistakes lead to, at most, convictions for small crimes, such as selling cigarettes to minors. Convictions for serious crimes require evidence indicating intentional wrongful actions.

What must an answer to a claim contain?

A denial

True or False: A deposition is a series of questions sent by one party to the other, which much be answered under oath.

A deposition is testimony of a witness given under oath. Both parties are generally present during the testimony and have an opportunity to cross-examine the witness. The correct answer is 'False'.

Fair use - copyright:

A fair use is an acceptable use of copyrighted material Formally, the Copyright Act directs courts to evaluate whether a use is commercial or educational, the nature of a copyrighted work, the portion of the work used relative to the whole, and the effects on potential markets for the work. The Suntrust Bank v. Houghton Mifflin case shows how courts apply the fair use doctrine.

Brooks Cotton v. Williams - outcome

A farmer may be considered a merchant when the farmer possesses sufficient expertise in not only the cultivation, but also the sale of crops. Williams was not a farmer-merchant and therefore the judgement is reversed and remanded

What is Statutory law?

A formal law passed by the legislature.

True or False: There are three types of charges to the jury: general, special, or a combination.

A general charge asks only for a general verdict; that is, it only asks for a guilty or innocent finding and the damages, if relevant. A special charge includes several different questions, such as the percent liability each side may have, if, in cases where the defendant can win by disproving just one of several elements of a cause of action, the jury found a specific element of a cause of action lacking, or other relevant questions. The correct answer is 'True'.

Which of the following outlines the difference between criminal and civil law? Select one: a. Criminal law imposes fines and imprisonment while civil law focuses on damages and injunctions. b. Criminal law is purely statutory in nature, while civil law is purely common law. c. Criminal law involves the state and a private party, while civil law involves only private parties. d. All of the above.

A is correct because both of these descriptions are largely accurate. B is incorrect because many civil cases involve statutes and, in some jurisdictions, criminal cases can involve common law. C is incorrect because civil law claims are often brought by the state or government agencies. The correct answer is: Criminal law imposes fines and imprisonment while civil law focuses on damages and injunctions.

What is arbitration?

A legally binding decision made by a thid party after brief pleadings and evidence are presented. Cheaper and faster than trial proceedings. No pretrial discovery involved though parties do usually exchange documents. No appeals available.

What is genericide?

A mark's loss of protection by becoming generic. Ex. Kleenex, Xerox

What is direct conflict?

A narrower form of implied preemption; if it is impossible to comply with both the state and federal laws or if the state law substantially interferes with the purpose of the federal law

Soldano VS O'Daniels background story/events:

A patron of Happy Jack's Saloon went across the street to the Circle Inn to talk with the owner of the two establishments. The patron then informed the owner that a person had been threatened at the saloon and requested to either use the phone or have the owner call the police. The owner refused both requests and the patron's father was shot and killed. The patron then brought action against the Circle Inn Owner for negligence in the death of his father.

Creation of agency basis:

A person legally becomes an agent when consent and capacity have been established. Consent is commonly established when parties sign an employment contract, but there is no need to be so formal because words or actions can also indicate consent. When the scope of an agent's power is defined in writing, the written authorization is a power of attorney (POA)

What is an incidental beneficiary?

A person whom the contracting parties did not intend to benefit by making the contract, but who nevertheless will benefit. Has no rights under the contract and thus is not entitled to enforce it.

What are examples of a good not passing the reasonable expectation test?

A piece of chicken may be expected to contain a bone but not when in a chicken sandwich; an olive may be expected to contain a pit but not when a hole at the end indicates that it has been pitted. Bones and olive pits will not render food unmerchantable under the "foreign-natural object" test but may do so under the reasonable expectation test

How can a plaintiff establish a guilty conviction of negligence? When can a court assume negligence? What must a plaintiff prove then?

A plaintiff must prove negligent conduct on the part of the manufacturer or seller, which is almost impossible to establish Occasionally the court presumes negligence from the fact that the accident did indeed occur under res ipsa loquitur ("the thing speaks for itself"). A plaintiff must then prove: (1) the defendant controlled the product (2) the defect would not normally occur absent negligence

How is consideration handled with regard to preexisting obligation?

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

What is a ratification of a contract?

A ratification occurs when upon reaching the age of majority, the minor indicates to the other party, expressly or impliedly, the intent to be bound by the agreement

When is a state allowed to discriminate against out of staters?

A state law may treat residents of other states differently if the law protects a legitimate "local" (state) interest and does not discriminate more than is necessary (ex. Out of state tuition)

What is the grandfather clause as pertains to contracts? When does it not apply?

A statute passed concerning contracts usually has a clause specifying that it only applies to contracts created after the passage of the law. It is okay for this not to occur if the law promotes an important state government interest and interferes with contracts only to an extent that is reasonably necessary to further the state interest

Under what article of the UCC are leases governed?

A true lease is governed by bailment law, while a lease intended as security for a loan is subject to UCC Article 9 and 2A. This is decided by the structure of the lease

What is mandatory authority?

A type of precedent; authority originating in courts above the trial court in the appellate chain. Judges must follow this even if they disagree ex. A state trial judge in Ohio will follow the rulings of the Ohio Supreme Court if there are any precedents from this court; if not, the judge will follow the prior decisions of Ohio's intermediate appellate courts. If no case in Ohio exists the judge may look to other states but this is not mandatory authority.

What is criminal law?

A type of statutory law which is punished by fines or imprisonment.

When is an acceptance of a unilateral offer effective?

A unilateral offer is accepted the moment the offeree performs the requested act; giving notice that the act has taken place is usually not required

What is a work-for-hire?

A work created by an employee while acting in the scope of his employment is a work-for-hire

Quarture v. Allegheny County - premise

A written contract was entered into, under the terms of which lawyer Sniderman was to "institute, conduct, superintend or prosecute to final determination, if necessary, a suit or suits, action or claim against the County of Allegheny on account of taking, injuring, and affecting (my, our) property in the relocation, widening, and opening of the State Highway known as Route No. 545." The contract further provided that Sniderman was to receive, as a fee for his services, "10 percent of all that might be recovered." After first trial, plaintiff was dissatisfied and appealed. For this appeal, he and Sniderman entered a new contract stating that Quarture would pay him a fee of 33 percent of whatever recovery might be obtained on appeal. Quarture objected, contending that his promise to pay the larger percentage was not supported by consideration and that Sniderman was thus bound by his original contract. The court rejected

Common law rules (statute of frauds):

A written memorandum that contains the names of both parties, the subject matter of the contract, the consideration to be paid and any other material terms, and is signed by the defendant. On the "signed by the defendant" requirement you don't need a full signature. Shattuck v. Klotzbach investigates whether emails can satisfy these requirements.

Whom among of the following would be protected under the ADA? a. A person with HIV. b. Homosexuals. c. Exhibitionists. d. Kleptomaniacs.

A.

Samsung believes that Apple has infringed upon its patents. Prior to filing a lawsuit for patent infringement, Samsung and Apple can engage in (1)__________ in order to save time and business relations. If this method does not work, or the two companies decide not to do this, Samsung will have to file a (2)__________ with the court in order to begin their lawsuit. The two parties decide to not petition for a jury trial. After the trial, the judge will consider (3)___________ and ___________ when deciding how to rule on the case. Which answer can correctly fill in the blanks? a. (1) Alternative Dispute Resolution. (2) Complaint. (3) Common law precedent and statutory rules. b. (1) Mediation. (2) An answer. (3) Common Law and statutory interpretation c. (1) Summary Jury Trial. (2) Complaint. (3) the UCC and precedent d. (1) Alternative Dispute Resolution. (2) Reply. (3) Common law and statutory rules

A. (1) Alternative Dispute Resolution. (2) Complaint. (3) Common law precedent and statutory rules. (1) Multiple forms of ADR can be attempted prior to filing a lawsuit, including mediation and arbitration. Summary Jury Trial can only occur following a lawsuit being filed. (2) The first thing filed in order to begin a lawsuit is a Complaint. A reply is the defendant's response to an answer (usually the second document filed, unless there is a motion filed by the defense) and an answer is the plaintiff's response to the reply. (3) When deciding the outcome of a case, a judge most almost always consider common law precedent and statutory law surrounding the case. The UCC is the uniform commercial code, generally applicable to contracts between two sophisticated individuals or companies

Which of the following transactions would not be within the scope of Article 2 of the UCC? a. A leasing contract for an apartment. b. Buying a car. c. Buying a cell phone. d. A contract to buy coal.

A. A lease for an apartment is not within the scope of Article 2 of the UCC because it is not a contract for tangible, movable goods.

A special appearance is used when: a. A party claims that the court doesn't have personal jurisdiction over them, and they appear in the court in order to make that argument. b. The suit in the case is of special nature and requires the defendant to, therefore, specifically make a special appearance. c. A party is compelling a witness to make an appearance against their will. d. None of the above

A. A special appearance is used to argue that the court lacks personal jurisdiction over a party. It is a special appearance because simply appearing before the court in a regular manner is considered consenting to personal jurisdiction and, thus, waiving the right to a special appearance.

Which of the following is not a classification of a trademark? a. Accurate. b. Arbitrary. c. Descriptive. d. Generic.

A. Accurate is not a classification of a trademark. Arbitrary or fanciful, suggestive, descriptive, and generic are all classifications of trademarks which have specific requirements that must be met in order to maintain the trademark.

Which of the following Constitutional clauses requires that every state must recognize court judgments and other public actions of its sister states? a. Article IV, section 1- The Full Faith and Credit Clause b. Article I, section 10- The Contract Clause c. Article VI, section 1- The Supremacy Clause. d. None of the Above

A. Article IV, section 1- The Full Faith and Credit Clause. The Full Faith and Credit Clause requires that every state must recognize court judgments and other public actions of its sister states.

Which of the following is not a circumstance which courts will often take into account when deciding what reasonable people in the circumstances probably would have intended regarding a contract? a. Evidence from the conduct of a party that is not engaged in the same trade b. Evidence from the conduct of the parties both before and after the alleged agreement was made c. A well-established custom in the industry in which the parties are members, assuming that the parties have not stated otherwise in their transaction d. Evidence of a custom that these parties may have established between themselves

A. Evidence from the conduct of a party that is not engaged in the same trade. Evidence from the conduct of a party that is not engaged in the same trade is not generally considered when determining the reasonable person standard.

Which of the following Constitutional clauses requires that every state must recognize court judgments and other public actions of its sister states? a. Article IV, section 1- The Full Faith and Credit Clause. Correct b. Article I, section 10- The Contract Clause. c. Article VI, section 1- The Supremacy Clause. d. None of the Above.

A. The Full Faith and Credit Clause requires that every state must recognize court judgments and other public actions of its sister states.

Which of the following does not tend to show bad faith in terms of cyber-squatting? a. The domain name consists of the defendant's name b. The defendant has given misleading contact information when applying for the registration of the domain name, or has intentional failed to maintain accurate information for contacting him c. The defendant has offered to sell the domain name it registered to someone else without having made a legitimate business use of it, and without any apparent intent to make a legitimate business use of it. d. The defendant's prior conduct shows a pattern of registering or acquiring domain names the same as or confusingly similar to the trademarks of others.

A. The domain name consists of the defendant's name. If the domain name consists of the defendant's name, this is considered to be a factor proving that there was good faith and not purposeful cyber-squatting.

Which of the following cases will likely not be considered a good claim that an employee at-will would have against an employer? a. The employee was fired after refusing to work after-hours b. The employee was fired after exercising a statutory right. c. The employee was fired after refusing to commit an illegal act. d. The employee was fired after whistle blowing

A. The employee was fired after refusing to work after-hours. B, C, and D are all commonly considered public policy exceptions to at-will employment.

Which of the following is not a necessary element to establish a firm offer? a. The offer must be accepted by a merchant. b. The offer must be to buy or sell goods. c. The offer must be written and signed by the offeror. d. The offer must give assurance that it will be held open.

A. The offer must be made by, not accepted by, a merchant. All of the other elements are necessary, in addition to the offer being made by a merchant in order to create a firm offer under § 2-205 of the UCC.

Which of the following rights granted by the Bill of Rights has been incorporated under the doctrine of incorporation? a. The right to an attorney in a criminal case. b. The right to indictment by a grand jury. c. The right to a jury selected from residents of the state and district where the crime occurred. d. The right to protection against excessive fines.

A. The right to an attorney has been incorporated and must be followed by individual states. None of the other rights has been incorporated into the U.S. Constitution, although they may be necessary under individual state constitutions.

Which of the following rights granted by the Bill of Rights has been incorporated under the doctrine of incorporation? a. The right to an attorney in a criminal case b. The right to indictment by a grand jury. c. The right to a jury selected from residents of the state and district where the crime occurred d. The right to protection against excessive fines.

A. The right to an attorney in a criminal case. The right to an attorney has been incorporated and must be followed by individual states. None of the other rights has been incorporated into the U.S. Constitution, although they may be necessary under individual state constitutions.

Which of the following are specifically required for a contract modification to be valid under the common law? a. There is consideration for the new contract. b. The modification is in writing. c. Both A and B d. None of the Above.

A. Under common law, a modification must be supported by consideration.

What does a Wrongful Death Statute allow for? a. Close relatives of deceased persons to sue those whose wrongful acts have caused a death. b. Friends of deceased persons to sue those whose wrongful acts have caused a death c. Local governments to imprison those whose wrongful acts have caused a death. d. None of the above.

A. Wrongful Death Statutes generally allow only for close relatives of a deceased person to sue those whose wrongful acts have caused a death.

Which of the following would generally not be considered a taking? a. Zoning laws. b. A requirement that a landowner must grant public access on beachfront property in order to get a building permit. c. Building a highway through the property. d. Creating an area where air traffic must fly low above property.

A. Zoning laws are almost never considered takings because they benefits property values on the whole. All of the other actions either deprive an owner of their property or significantly lowers the value of the property.

Which of the following transactions would not be within the scope of Article 2 of the UCC? a. A leasing contract for an apartment b. Buying a car. c. Buying a cell phone. d. A contract to buy coal.

A. a leasing contract for an apartment. A lease for an apartment is not within the scope of Article 2 of the UCC because it is not a contract for tangible, movable goods.

Whom among of the following would be protected under the ADA? a. A person with HIV b. Homosexuals c. exhibitionists d. kleptomaniacs

A. a person with HIV. An HIV infection is a disability under the definition of the ADA. Homosexuality, exhibitionism, and kleptomania are expressly not protected under the ADA.

Which of the following is not a label used to identify the different level of duty a landowner owes to a person on his property? a. A visitor b. A trespasser. c. A licensee d. An invitee.

A. a visitor.A visitor is not a term used to differentiate between various levels of duty a landowner may owe to a person on his property.

Which of the following is not a classification of a trademark? a. accurate b. arbitrary c. descriptive d. generic

A. accurate. Accurate is not a classification of a trademark. Arbitrary or fanciful, suggestive, descriptive, and generic are all classifications of trademarks which have specific requirements that must be met in order to maintain the trademark

During pretrial proceedings, which of the following is generally filed by the defendant? a. the answer b. the complaint c. the response d. all of the above

A. the answer. Generally, the plaintiff files both the complaint and the response during pretrial proceedings while the defendant responds to the complaint with an answer

Which of the following would generally not be considered a taking? a. zoning laws b. A requirement that a landowner must grant public access on beachfront property in order to get a building permit c. Building a highway through the property. d. Creating an area where air traffic must fly low above property

A. zoning laws. Zoning laws are almost never considered takings because they benefits property values on the whole. All of the other actions either deprive an owner of their property or significantly lowers the value of the property

What specifies procedures a federal agent must abide by when engaging in legislative rule making?

APA - Federal Administrative Procedures Act

What is a minor's liability on an ordinary contract?

Aall minors' contracts are voidable at their option. This is true even after a contract is executed.

Benay v. Warner Brothers Entertainment - premise

Aaron and Matthew Benay, who wrote a screenplay, The Last Samurai ("the Screenplay"). The Benays contend that the creators of the film The Last Samurai ("the Film") copied from the Screenplay without permission. They sued Warner Brothers Entertainment, Inc. The Benays' agent, David Phillips, "pitched" the Screenplay to the president of production at Bedford Falls, Richard Solomon, on the telephone, providing a copy of the Screenplay to Solomon with the implicit understanding that if Bedford Falls used it to produce a film, the Benays would be appropriately compensated. Solomon informed Phillips after receiving the Screenplay that Bedford Falls had decided to "pass" because it already had a similar project in development. The Film appeared in theaters in 2003, and the Benays sued for copyright infringement in 2005. The district court granted summary judgment for Defendants, and plaintiffs appealed.

The mailbox rule applies to delayed, non-real-time communications about offers. It creates two key standards:

Acceptances count as soon as they are sent. Rejections and revocations are not effective until received by the other side. As with many legal ideas, there are key twists in the basic rules that apply in specific circumstances.

The Rehabilitation Act of 1973

Addresses disability discrimination and applies to only some employers, while the Americans with Disabilities Act applies to many more.

Leonard vs. PepsiCo: *Ads =

Ads often look like offers to sell something but are not seen as offers by the law, because it is being broadcasted to millions - Doesn't matter that an ad shows a picture of a refrigerator and says it is on sale...offer is when you walk into the store and pay for the refrigerator - Offer does not take place when the ad is generated

Are advertisements offers?

Advertisements are usually considered to be preliminary negotiations, rather than offers to sell.

Agents of Capital view says:

Agents of the shareholders who own the corporation and provide its capital. As such, their only duty is to earn as much money as possible for the shareholders, within the limits of the law and customary ethical practices. Corporations are not moral agents; only managers and employees as individuals have moral status.

What are the essential attributes to the formation of a contract?

Agreement, consideration, capacity of the parties, and legality of purpose

Alan buys a new laptop at Best Buy for $600. Betty buys an acre of land for $6,000. Carol signs up for a year of cable TV service, and pre-pays $600. Which of these agreements will be governed by Article Two of the Uniform Commercial Code?

Alan's only - (Article II applies to sales of goods, which are, essentially, moveable things. Not real estate, and not services.)

Granholm v. Heald - premise

Alcoholic beverages are sold through a three-tier distribution system. Separate licenses are required for producers, wholesalers, and retailers. The three-tier scheme is preserved by state and federal regulations. The three-tier system is mandated by Michigan and New York only for sales from out-of-state wineries. In-state wineries, by contrast, can obtain a license for direct sales to consumers. Out-of-state wineries that wished to be able to ship their wine directly to customers in Michigan and New York, filed lawsuits challenging those states' laws. the Second Circuit Court of Appeals ruled for defendants in the New York case. The losing parties appealed.

Shattuck v. Klotzbach - outcome

All e-mail correspondences between the parties contained a typewritten signature at the end. Multiple writings relating to the subject matter may be read together in order to satisfy the memorandum requirement so long as the writings, when considered as a single instrument, contain all the material terms of the contract and are authenticated by the signature of the party to be charged. Defendant's motion to dismiss is denied.

Feist publications inc v. Rural telephone service co - premise

All telephone companies operating in Kansas must issue an updated telephone directory annually. Rural publishes a typical telephone directory, consisting of white pages and yellow pages. The white pages list in alphabetical order the names of Rural's subscribers, together with their towns and telephone numbers. The yellow pages list Rural's business subscribers alphabetically by category and feature classified advertisements of various sizes. Feist Publications, Inc. is a publishing company that specializes in wide-area telephone directories. To obtain white pages listings for its area-wide directory, Feist approached each of the 11 telephone companies operating in northwest Kansas and offered to pay for the right to use its white pages listings. Of the 11 telephone companies, only Rural refused to license its listings to Feist. Feist used them without Rural's consent. The district court and the court of appeals held that Rural's white pages were protected by copyright and that Feist had infringed. Feist appealed to the Supreme Court.

Common law

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

What is a motion for new trial?

Alleges that the trial judge committed one or more errors in the trial that probably affected the outcome. Usually a prerequisite for an appeal.

What is the Madrid Agreement and the Madrid Protocol?

Allow for one centralized filing of a trademark application in a member country (in the U.S., this is done in the PTO), and the payment of a single filing fee. The application is then forwarded to the other member countries designated by the applicant

What is the Bulge Provision?

Allows a federal court to exercise personal jurisdiction over certain parties who have been joined to a case if those parties are within 100-miles of the court even if they are located in another state. State courts in the state in which the federal court sits would not have personal jurisdiction over them.

Mediation & Arbitration are both forms of...

Alternate Dispute Resolution (ADR)

True or False: Alternative Dispute Resolution is a blanket term used to describe techniques used to resolve legal conflicts outside of courtrooms, and includes mediation, arbitration, and other methods.

Alternative Dispute Resolution techniques, such as mediation and arbitration, are used to avoid costly court and attorney's fees as well as save the time a lengthy trial may take. The correct answer is 'True'.

Knight vs. Just Born: *Outcome* =

Although Mr. Knight is not entitled to summary judgment on this claim, he is nonetheless entitled to present his case to a jury. Therefore, both motions for summary judgment are denied.

True or False: An attorney generally cannot ever ask leading questions of a witness.

Although an attorney is not allowed to lead the witness during direct examination, an attorney is allowed to lead the witness if it is an adverse witness. The correct answer is 'False'.

Assault

An assault occurs when a victim is made reasonably afraid that he is about to be battered

True or False: An effective manager of a corporation should not attempt to alter political situations.

An effective manager will attempt to alter political situations and regulations to aid their company. The correct answer is: False

What is law of agency?

An employer can be held liable if an employee was acting within the scope of his employment at the time of the incident

True or False: Casey, while working for the corporation B12, injures David. This injury is the result of Casey acting outside his scope of employment. Regardless, B12 can be held liable for Casey's actions.

An employer generally can be held liable for the actions of an employee if the actions of the employee was within the scope of employment. The correct answer is: False

What is a patent troll?

An entity that buys up patents, makes no effort to commercialize the underlying inventions, but lurks in the shadows until another party has invested money and resources in a business or product that may infringe on an under-utilized invention

What is the Merger Doctrine?

An expression of an idea may not be protected by copyright if there is only one way, or only a very small number of ways, to express the idea. Under the "merger doctrine," courts say that in such circumstances the expression "merges" with the idea. Protecting the expression would have the practical effect of protecting the idea itself. Protecting ideas is within the purview of trade secret and patent law, not copyright law.

What is a firm offer? How long must a firm offer be held open?

An offer to buy or sell goods made by a merchant, written and signed by the offeror, which has given assurance that it will be held open. Must be held open for a period of time not exceeding 3 months.

What is a judgement? When does a judgement occur?

An order requiring A to pay a sum of money to Z that is equal to the amount of property lost. Occurs when Z is legally allowed to recover property but for some reason A cannot return it.

How are patent rights transferred?

An owner can sell or otherwise transfer patent ownership to someone else by executing a written assignment and recording it with the PTO

What is a person's liability for a contract after they have been adjudicated mentally infirm?

Any "contract" made by the insane person rather than by the guardian is absolutely void even if it is never disaffirmed. Because people who have been adjudicated insane often improve, some courts' rule is that their contracts are voidable rather than inherently void and can be disaffirmed

When are corporate officers held liable for a corporation's actions?

Any act they participate in, authorize, or encourage. Encouragement can include failure to stop criminal activity that the official knows is occurring

True or False: A claim arising out of the Americans with disabilities act, which is a Federal statute, would be a Federal Question case and, therefore, be within a federal district court's jurisdiction.

Any case that arises out of a federal statute, such as the Americans with disabilities act, can be brought in a Federal District court. The correct answer is: True

What are the rules regarding a service of summons by appearance in court?

Any formal steps to defend the case by appearing in court. Doesn't count in the case of a special appearance (an action to challenge the court's personal jurisdiction)

Trade secret

Any information a company possesses that is not generally available through legal means and gives a company a competitive advantage can be a trade secret

What rights cannot be assigned without debtor's assent?

Any rights that are expressly forbidden to be assigned, or any rights which are personal in nature

What are the five methods of gaining personal jurisdiction?

Appearance in court, personal service of summons, alternatives to personal service of summons, serving to a corporation, and long-arm statute

What goes into the record of an appellate case?

Appellant's attorney files a notice of appeal and asks the clerk of the trial court prepare the record of the case

What is the Adversarial system of law? Where did we get it? What cases is it applied to?

Applied to criminal and civil cases, derived from english law, refers to the amount of control that the parties and their attorneys have over the procedure. Parties research the law and develop the facts, decide which issues are going to be presented, which legal arguments are going to be made, what evidence should be gathered and presented, and how the evidence is to be introduced in court without input from the trial judge

What are the two most common forms of Alternative Dispute Resolution?

Arbitration and Mediation.

Contract enforcement

Article 2 contains a statute of frauds provision, which requires that sale of goods contracts of over $500 must be in writing to be enforceable. If you and I have a verbal, handshake agreement that you will pay me $100 for my used TV, then the verbal agreement can amount to an enforceable contract.

If two people or businesses make a contract that involves selling goods, and if there is a dispute that leads to a lawsuit, then ___________________ will govern the case and will be used to determine what should happen

Article 2 rules

The Federal Court System:

Article III, section 1 of constitution provided that the judicial power of the US should be vested in one supreme court 3 main categories: 1. Specialized trial courts 2. U.S. district courts 3. Appellate courts - the courts of appeal and the supreme court

Examples of intentional torts:

Assault and battery, defamation, false imprisonment, trespass, and nuisance, invasion of privacy, intentional infliction of emotional distress, intentional interference with a business relationship

Which of the following alterations would most likely be considered material? Select one: a. Changing the specifications of the items. b. Changing the price of the items by 1%. c. Changing the method of delivery of the items.

B

Which of the following are not protected by copyrights? Select one: a. Architectural works. b. Ideas. c. Motion pictures. d. Pantomimes.

B

Which of the following classifications of trademarks require proof of a secondary meaning? Select one: a. Suggestive Terms. b. Descriptive Terms. c. Arbitrary or Fanciful Terms. d. All of the above.

B

Which of the following generally has to be in writing in order to satisfy the statute of frauds? a. Contracts which will be performed within one year of the completion of the contract. b. Contracts for the sale of an interest in land. c. Contracts to pay a debt. d. Contracts to pay for education.

B

Which of the following is not a requirement in order for an invention to be patentable? Select one: a. The invention is nonobvious. b. The invention is revolutionary. c. The invention involves patentable subject matter. d. The invention must be the result of a patent application that was originally filed within one year after certain actions that revealed the inventions.

B

Which of the following requirements does not have to be met in order for a commercial speech regulation to be constitutionally permissible? Select one: a. The regulation directly advances the governmental interest and is not more extensive than is necessary to serve that interest. b. The regulation does not interfere with properly informing the consumer of alternatives. c. The speech in question must concern lawful activity and not be misleading. d. The asserted governmental interest to be served by the regulation must be substantial.

B

Which of the following should an answer always contain? Select one: a. An affirmative defense. b. A denial. c. A counterclaim. d. None of the above.

B

Which of the following classifications of trademarks require proof of a secondary meaning? a. Suggestive Terms. b. Descriptive Terms. c. Arbitrary or Fanciful Terms. d. All of the above.

B. Descriptive Terms require proof of a secondary meaning because it merely identifies a characteristic or quality of a product or service.

Which of the following is not a requirement in order for an invention to be patentable? a. The invention is nonobvious. b. The invention is revolutionary. c. The invention involves patentable subject matter. d. The invention must be the result of a patent application that was originally filed within one year after certain actions that revealed the inventions.

B. Every invention is not required to be revolutionary. However, it must be patentable subject matter, useful, novel, the result of a patent application that was originally filed within one year after certain actions that revealed the inventions, and nonobvious.

Which of the following are not protected by copyrights? a. Architectural works. b. Ideas. c. Motion pictures. d. Pantomimes.

B. Ideas are not protected by copyrights. Copyright protects original expressions of ideas, but not ideas themselves.

Which of the following is not a term that can be filled by a "gap-filler" provision under the UCC? a. Open Delivery b. Open Quantity. c. Open Time d. Open Price

B. Open Quantity. The quantity must be determined, and cannot be inserted via gap-filler. There are, however, gap-fillers in the UCC for undefined delivery times, delivery options, and even undefined prices

Which of the following is not a requirement in order for an invention to be patentable? a. The invention is non-obvious b. The invention is revolutionary c. The invention involves patentable subject matter d. The invention must be the result of a patent application that was originally filed within one year after certain actions that revealed the inventions.

B. The invention is revolutionary. Every invention is not required to be revolutionary. However, it must be patentable subject matter, useful, novel, the result of a patent application that was originally filed within one year after certain actions that revealed the inventions, and non-obvious.

Which of the following is not a term that can be filled by a "gap-filler" provision under the UCC? a. Open Delivery. b. Open Quantity. c. Open Time. d. Open Price.

B. The quantity must be determined, and cannot be inserted via gap-filler. There are, however, gap-fillers in the UCC for undefined delivery times, delivery options, and even undefined prices.

Which of the following has not been considered by courts when determining if the defendant owed the plaintiff a duty of care in a negligence claim? a. A policy of preventing future harm b. The relative wealth of the parties. c. The availability, cost, and prevalence of insurance for the risk involved. d. The moral blame attached to the defendant's conduct.

B. The relative wealth of the parties. The relative wealth of the parties is not listed as a factor taken into consideration when deciding if the defendant owed a duty to the plaintiff. Other factors considered are the foreseeability of the harm to the plaintiff, the degree of certainty the plaintiff suffered an injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with the resulting liability.

Which of the following are not protected by copyrights? a. Architectural works. b. ideas c. motion pictures d. pantomimes

B. ideas. Ideas are not protected by copyrights. Copyright protects original expressions of ideas, but not ideas themselves

Case example of Unilateral mistakes and fraud:

Beachcomber Coins v. Boskett

When both sides make an error about the "existence, character, or identity" of the contract's subject matter, a voidable contract may be formed. The court applies this idea to a dispute involving a counterfeit rare dime in ______

Beachcomber Coins v. Boskett:

Beachcomber coins inc. v. Boskett - premise

Beachcomber bought a counterfeit coin and demanded a refund. When Boskett, the seller, refused, plaintiff brought this action asking rescission of the contract The trial judge found that there was a mutual mistake of fact (a mistake as to the coin's genuineness) that would ordinarily justify rescission of the contract. However, a buyer of a coin who was permitted to examine it before purchase "assumed the risk" that it might be counterfeit. He therefore dismissed the action and plaintiff appealed.

True or False: Johnny, a citizen of Texas, and Teddy, a citizen of Kentucky, sue Ash, a citizen of Texas, and Aaron, a citizen of Georgia for $125,000 from a claim arising from state law. This suit can be brought in Federal Court.

Because Johnny and Ash are both from Texas, the requirements for diversity jurisdiction are not met. Diversity Jurisdiction requires the claim be worth at least $75000 and that no defendant have the same state of residency as any of the plaintiffs. The correct answer is: False

True or False: The adversarial judicial system tends to put more cost in the private sector while the inquisitorial system tends to put more cost in the public sector.

Because the adversarial system requires that the lawyers do the majority of the investigation and research, it tends to cost more for the private sector. The inquisitorial system requires much more out of the judges and, therefore, costs more for the public sector. The correct answer is 'True'.

Kelo v. City of New London - outcome

Because the plan (for the land) unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment Promoting economic development is a traditional and long accepted function of government, but this raises the question of whether or not we should be using eminent domain to promote economic development. Based on precedence, it's totally legal.

Executed v. executory contracts

Been fully performed by both sides v. been made, but one or both sides have not yet fulfilled all of their obligations

How is one proven guilty in a criminal case?

Beyond a reasonable doubt

What is blurring? Tarnishment?

Blurring is diminishing (diluting) a mark's distinctiveness. Tarnishment is undermining the positive image of the mark if it is no longer restricted to the quality of products a consumer would normally expect from a brand.

Burden of proof/Reasonable doubt in Criminal cases:

Burden of proof is on the prosecutor to prove that the defendant is guilty beyond a reasonable doubt. 99% certain What is a reasonable doubt? Moral minimum use as a frame of reference

Jim wishes to expand his net worth by being more aggressive in the stock market. To this end, he contacts Walt, a well known stock broker, and sets up an account with a salary in order to have Walt make stock trades for him. Which of the following actions would be considered a breach of fiduciary duty by Walt? Select one: a. Walt also controls the stocks of one of Jim's largest competitors, Bob. b. Due to rapidly changing market conditions, Walt is unsure of the exact value of all of Jim's stocks. c. Walt invested Jim's money, and made a large portion of money, in Sony. However, Jim expressly told Walt not to invest in Sony. d. Walt lost a large portion of Jim's money while doing stock trades that he normally would.

C

Under which of the following scenarios would WalCo most likely be labeled a patent troll? Select one: a. WalCo did not originally create the patent they hold; they bought it several years ago from a third party. It has not attempted to improve upon the patent, but it has implemented the patented technology into its business system (it was a business method patent). b. WalCo created the patent in-house but has not attempted to improve upon the patent. However, it has sold a large number of products which directly implement the patented technology. c. WalCo did not originally create the patent it holds; it bought it several years ago from a third party. Although WalCo attempted to improve the patented invention, it did not directly use it in commerce at any point in time. d. WalCo created the patent in-house and has continually attempted to improve upon it for several years.

C

What mechanism is primarily used by states to avoid issues with the Contract Clause when a state is attempting to pass legislation that would change a term of a contract? Select one: a. Comity. b. Incorporation. c. A Grandfather clause. d. None of the Above.

C

Which of the following cases will likely not be considered a good claim that an employee at-will would have against an employer? a. The employee was fired after refusing to work after-hours. b. The employee was fired after exercising a statutory right. c. The employee was fired after refusing to commit an illegal act. d. The employee was fired after whistle blowing.

C

Which of the following is not a necessary element in establishing a claim for retaliation? Select one: a. The plaintiff suffered an adverse employment action. b. The plaintiff engaged in a protected activity. c. The plaintiff had complained to the EEOC. d. There is a connection between the protected activity and the adverse employment action.

C

Which of the following would be considered slander? Select one: a. A false newspaper article. b. A false news report on a TV channel. c. Someone spreading rumors about you. d. A false radio report.

C

Which one of the following is not a typical fashion by which an agency relationship ends? a. Mutual Agreement. b. Occurrence of a Specified Event. c. Statute of Limitations. d. Fulfillment of Purpose.

C

Which of the following is not a popular method of ADR? Select one: a. Arbitration. b. Negotiated Settlement. c. Lawsuits. d. All of the above.

C A lawsuit is not a type of ADR. An ADR is an alternative to a lawsuit. Arbitration and negotiated settlements are two of the primary types of ADR used. The correct answer is: Lawsuits.

What is summary judgment? Select one: a. The jury deciding the verdict of a case before the trial is finished. b. A politician pardoning a defendant from their sentence. c. A trial judge deciding a case as a matter of law because there is "no genuine issue of material fact." d. None of the above.

C If there is no "genuine issue of material fact," a judge may decide the outcome of a case without allowing the case to go before a jury. The correct answer is: A trial judge deciding a case as a matter of law because there is "no genuine issue of material fact."

What mechanism is primarily used by states to avoid issues with the Contract Clause when a state is attempting to pass legislation that would change a term of a contract? a. Comity. b. Incorporation. c. A Grandfather clause. d. None of the Above.

C. A Grandfather clause allows for contracts that would otherwise be subject to the terms of subsequent legislation to not be effected. Comity is a doctrine that advocates for one sovereign to respect the judicial determinations of another. Incorporation is the doctrine that is used to expand the Bill of Rights to be required by states.

What mechanism is primarily used by states to avoid issues with the Contract Clause when a state is attempting to pass legislation that would change a term of a contract? a. Comity b. Incorporation c. A grandfather clause d. none of the above

C. A Grandfather clause. A Grandfather clause allows for contracts that would otherwise be subject to the terms of subsequent legislation to not be effected. Comity is a doctrine that advocates for one sovereign to respect the judicial determinations of another. Incorporation is the doctrine that is used to expand the Bill of Rights to be required by states.

Which of the following is not a necessary element in establishing a claim for retaliation? a. The plaintiff suffered an adverse employment action. b. The plaintiff engaged in a protected activity. c. The plaintiff had complained to the EEOC. d. There is a connection between the protected activity and the adverse employment action.

C. A, B, and D are all necessary elements in a prima facie case for retaliation.

Which of the following type of third party beneficiary does not have enforcement rights? a. Creditor. b. Donee c. Incidental

C. Incidental. Unintended, or incidental, beneficiaries do not have rights

Which of the following is not a popular method of ADR? a. arbitration b. negotiated settlement c. lawsuits d. all of the above

C. Lawsuits. A lawsuit is not a type of ADR. An ADR is an alternative to a lawsuit. Arbitration and negotiated settlements are two of the primary types of ADR used.

Which of the following would be considered slander? a. A false newspaper article b. A false news report on a TV channel c. Someone spreading rumors about you. d. A false radio report

C. Someone spreading rumors about you. Although slander is generally oral, TV and radio broadcasts are generally considered libel. Spreading rumors can be an example of slander.

What is "statutory law"? a. Laws regarding statues. b. Laws established by tradition and passed down in courts. c. Laws arising from statutes passed by legislative bodies. d. None of the above

C. Statutory laws are laws based on statutes passed by legislative state or federal bodies.

Which of the following is not a necessary element in establishing a claim for retaliation? a. The plaintiff suffered an adverse employment action b. The plaintiff engaged in a protected activity c. The plaintiff had complained to the EEOC. d. There is a connection between the protected activity and the adverse employment action.

C. The plaintiff had complained to the EEOC. A, B, and D are all necessary elements in a prima facie case for retaliation.

Employees must request leave in order for the FMLA's requirement to come into effect. a. Mutual Agreement. b. Occurrence of a Specified Event. c. Statute of Limitations. d. Fulfillment of Purpose.

C. There is, generally, no limit on how long one of these relationships can last prescribed by state or federal law. A, B, and D are all usual methods by which an agency relationship may end.

Which of the following type of third party beneficiary does not have enforcement rights? a. Creditor. b. Donee. c. Incidental.

C. Unintended, or incidental, beneficiaries do not have rights.

Under which of the following scenarios would WalCo most likely be labeled a patent troll? a. WalCo did not originally create the patent they hold; they bought it several years ago from a third party. It has not attempted to improve upon the patent, but it has implemented the patented technology into its business system (it was a business method patent). b. WalCo created the patent in-house but has not attempted to improve upon the patent. However, it has sold a large number of products which directly implement the patented technology. c. WalCo did not originally create the patent it holds; it bought it several years ago from a third party. Although WalCo attempted to improve the patented invention, it did not directly use it in commerce at any point in time. d. WalCo created the patent in-house and has continually attempted to improve upon it for several years

C. WalCo did not originally create the patent it holds; it bought it several years ago from a third party. Although WalCo attempted to improve the patented invention, it did not directly use it in commerce at any point in time. Even though WalCo did attempt to improve upon the patent, the fact that it did not actually use any portion of the patent, when considered in conjunction with the fact that it bought the patent from a third party makes it very likely that Walco would be considered a patent troll.

Which one of the following is not an element required to establish an agency relationship? a. Consent b. capacity c. obedience d. all of the above

C. obedience. Although obedience is owed by the agent to the principal, it is not a necessary element to establish agency. Consent of both parties and capacity by the principal are necessary.

Schupach v. McDonald's System Inc - outcome

Careful selection of franchisees was to be the key to success for McDonald's Right of First Refusal was intended to be personal in nature, and was separately a grant independent of the terms of the franchise contract itself.

Castillo v. Rios - premise

Castillo asked Rios if he wanted to buy the house from him. He and Castillo reached an oral agreement by which Rios gave Castillo a Ford Taurus, $1,000 for the down payment, and an additional $500 in exchange for the house. Thereafter, Castillo closed on the house. Rios remodeled the house, moved in, and began making mortgage payments, but Castillo refused to transfer the title. Four years later, Castillo sued to evict Rios. Rios then brought this action to establish his right to title. The trial court overruled Castillo's statute of frauds defense and ordered him to convey the property to Rios by general warranty deed. Castillo appealed

What is usury?

Charging interest in excess of the permitted rate constitutes usury

What is Conflict of Laws? Why are they used? What are common uses of this?

Choice of law rules are designed to prevent a plaintiff with multiple jurisdictions from which to choose from "forum shopping" for the jurisdiction with the laws most favorable to him or her. Common uses are contract cases and tort cases.

Most types of controversies are _______ actions

Civil

Otis Engineering v. Clark: *Outcome* =

Clark sued Otis for wrongful death action When, because of an employee's incapacity, an employer exercises control over the employee, the employer has a duty to take such action to prevent the employee from causing an unreasonable risk of harm to others. Remanded. -District court dismissed suit, saying Matheson was not acting in scope of employment at time of accident --> case goes to Intermediate court where the court believed because of the employee's state, the employer had certain responsibility over its employee. It should have foreseen this kind of accident to happen *Clark Won case*

Pelman v. McDonalds - premise

Class action against McDonald's, alleging that it sells fast food that is high in unhealthy substances and thereby contributes to a burgeoning obesity problem among Americans. alleged deceptive advertising claims and negligence claims. plaintiffs had failed to produce any advertisements that could be viewed as deceptive and turned to the product liability claims based in negligence.

Where does copyright law come from?

Comes from US Constitution Copyright clause - article 1 section 8

Trademark protection comes from where?

Commerce Clause & Lanham Act - Trademark legislation State trademark statutes essentially identical to Lanham Act

What are the two sources of law?

Common and statutory

What is common law (case law)?

Common law is established by the judiciary on a case-by-case basis

Common Law

Common law refers to legal ideas that originate in court opinions.

Intrusion

Companies sometimes commit intrusion by overzealously monitoring their employees or appropriation by using a person's image without permission in advertisements. Although making truthful statements about people never amounts to defamation, such an action can sometimes amount to disclosure of public facts or false light.

Pelman v. McDonalds - outcome

Complaint did not adequately specify proximate cause and should be dismissed for that reason as well The judge dismissed the complaint, granting plaintiff permission to replead.

What is the commerce clause? How has it changed since the 1930s?

Congress has the power "to regulate Commerce with foreign Nations, and among the States." In the 1930s, the Court added a third and extremely broad category, holding that Congress could regulate commerce occurring so long as the commercial activity had "any appreciable effect" on interstate or foreign commerce

What is freedom of religion? What is the government's role with respect to religion?

Congress shall make no law (1) respecting an establishment of religion, or (2) prohibiting the free exercise thereof. Government's role is "benevolent neutrality"

Where businesses are concerned, most federal laws are passed under ...

Congress' power to regulate interstate commerce. Relatively few laws directly address bankruptcy, coining money, or the other items in Article I, Section 8.

Leonard v. Pepsico - outcome

Consider what an objective, reasonable person would have understood the commercial to convey. In light of the obvious absurdity of the commercial, the Court rejects plaintiff's argument that the commercial was not clearly in jest. Defendant's motion for summary judgment is granted.

Leonard vs. PepsiCo: *Outcome* =

Consider what an objective, reasonable person would have understood the commercial to convey. In light of the obvious absurdity of the commercial, the Court rejects plaintiff's argument that the commercial was not clearly in jest. Defendant's motion for summary judgment is granted.

What is an examples of a contract contrary to public policy?

Contracts in Restraint of Trade

Contracts - rights and duties:

Contracts involve rights and duties. They can be transferred to third parties. Sometimes, rights cannot be assigned without the consent of the other party to the contract or the obligor. Consent is required when a contract specifically bans assignments, a contract is personal in nature, or the obligor's duties would be materially altered. Schupach v. McDonald's Systems

What is fair use? What categories are covered by fair use?

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

What can be copyrighted?

Copyright protects original "selection, coordination, and arrangement" of elements - creatuve tangible representation of a product (Books, movies, music, choreography, architectural works, photos, software, characters, labels, posters, among other things including ad copy)

Copyright time frame:

Copyrights last for a long time: the life of the author plus another 70 years after his or her death.

Why is corporate speech regulated?

Corporate speech, like individual speech, has informational value—it contributes to the public debate on important issues.

True or False: Johnny, a citizen of Texas, sues USC, a corporation incorporated in California with a principle place of business in Texas, for $2.5 million on a claim arising from state law. This suit can be brought in Federal Court.

Corporations are considered to be citizens of both the state in which they are incorporated in and where their principle place of business is. Because USC's principle place of business is in Texas and Johnny is a citizen of Texas, diversity jurisdiction cannot be established. The correct answer is: False

True of False: Because a corporation is not an individual, a corporation does not have to be served prior to a suit.

Corporations generally appoint and register an agent to be served and some jurisdictions will consider service valid if any officer of the corporation is properly served. The correct answer is: False

Flagellio v. Pennsylvania Hospital - outcome

Court examined Pennsylvania precedent: doctrine originated in an early English case that was soon overruled there, that the American courts seemed to adopt blindly, and further noted that half the states have now rejected the doctrine of immunity. Reversed.

What courts hear most cases that come to trial (statte)?

Courts of limited jurisdiction

What are the three types of state court?

Courts of limited jurisdiction, general trial courts, and appellate courts

True or False: A court will generally consider the textual context of a statute when attempting to determine the meaning of an ambiguous statute, prior to taking into account the circumstantial context of the passing of the statute.

Courts often consider the textual context of a statute when trying to interpret the meaning of the statute prior to considering the circumstantial context of when the statute was passed. The correct answer is 'True'.

Lesson in Doughty v. Idaho Frozen Foods

Courts will occasionally void contracts that are unconscionable, or that shock the conscience of the court. Especially when a party had no choice but to sign some kind of oppressive agreement, courts tend to find unconscionability.

The Systems and Software v. Barnes

Covenants not to compete (or non competes) present interesting issues. In this type of agreement, one party agrees not to compete with the other.

Civil Law

Covers rights and duties among private people and companies

What is the Consumer Product Safety Act? What is the maximum fine under the CPSA?

Covers subjects ranging from safety research and testing to preparing safety rules and standards for more than 10,000 products. Does not regulate cars or anything already covered by the FDA. The maximum fine is $1.65 million, a very small amount, so this is often seen as ineffectual.

Common law v. UCC contracts

Create most of general contract law v. contracts that involve a sale of goods

What if the creditor seeks to recover the rest of the debt after collecting settlement?

Creditor can collect the remaining balance if the original debt was liquidated. They cannot collect if it was unliquidated or if the check contained the words "in full satisfaction"

If Joe follows the recommendations of his coworkers, which of the following tendencies did he most likely follow? a. Role Morality. b. Self-Serving Bias. c. Obedience to Authority. d. Conformity Bias.

D

In a UCC contract, assuming the method of deliver is left open, which of the following methods would be most useful in determining which way the contract should be interpreted to require the delivery take place? Select one: a. Industry standard. b. The cheapest method. c. The safest method. d. Custom between the parties.

D

In a contract for a sale of widgets, which of the following mutually-agreed upon changes would not require consideration? Select one: a. The change requires the rest of the widgets to have higher specifications. b. The change requires the widgets be completed earlier. c. The change requires another shipment of widgets two months after the final shipment. d. All of the above.

D

Under the UCC, which of the following is not a path a court may take after finding a contract unconscionable? a. Refusing to enforce the contract. b. Enforcing the remainder of the contract without the unconscionable clause. c. Limit the application of any unconscionable clause so as to avoid any unreasonable result. d. Enforce punitive damages against the offending party.

D

What is one way to categorize law? Select one: a. Subject matter. b. Federal v. State. c. Statutory v. Common law. d. All of the above.

D

Which of the following is a doctrine used to presume negligence from the fact that an accident occurred? Select one: a. Animus Nocendi. b. Actus Reus. c. Implied Warranties. d. Res Ipsa Loquitur.

D

Which of the following is a reason a potential juror may be dismissed during voir dire? Select one: a. An attorney uses a peremptory challenge or a strike against the juror. b. A judge excuses a person by granting a challenge for cause made by one of the attorneys. c. The potential juror requests to hear a separate case. d. A and B.

D

Which of the following is an example of a reason for which a contract may be voidable? Select one: a. One of the parties is a minor. b. One of the parties is mentally incompetent. c. One of the parties committed fraud. d. All of the above.

D

Which of the following is generally not considered when deciding whether an individual is able to receive "bystander recovery" from a negligence claim? Select one: a. Whether the emotional shock resulted from a contemporaneous perception of the accident. b. Whether the plaintiff and the victim were closely related. c. Whether the plaintiff was located near the scene of the accident. d. Whether the plaintiff and the defendant were closely related.

D

Which of the following is, in most states, an example of a reasonable medium under the reasonable medium rule? Select one: a. One which is impliedly authorized by the language of the offer. b. One customarily used in prior dealings between the parties. c. The same one used by the offeror in making the offer. d. All of the Above.

D

Which of the following are types of discovery tools generally used during pretrial discovery? Select one: a. Depositions. b. Interrogatories. c. Requests for production of documents. d. All of the above.

D All of the above are tools for discovery used in most states and federal courts. Depositions are records of testimony taken outside of court. Interrogatories are written questions submitted by one party to the other, which must be answered under oath. A request for production of documents is a written request for the other party to provide documents relevant to the case. The correct answer is: All of the above.

If Joe follows the recommendations of his coworkers, which of the following tendencies did he most likely follow? a. Role Morality. b. Self-Serving Bias. c. Obedience to Authority. d. Conformity Bias.

D.

Which of the following is an example of when a superior may be held liable for the tortious actions of a subordinate? a. The superior is negligent in failing to properly supervise the subordinate. b. The superior directs the subordinate to commit the tort. c. The superior allows the subordinate to operate potentially dangerous equipment when he knows or should know the subordinate is unqualified or incapable of handling it safely. d. All of the above.

D.

Which of the following is not protected under the FMLA? a. Time off for the birth and care of a newborn child. b. A serious health condition that makes the employee unable to perform essential functions of his job. c. Time off to care for an employee's spouse who has a serious health condition. d. Time off to care for a grandchild who has a serious health condition.

D.

Which of the following is, in most states, an example of a reasonable medium under the reasonable medium rule? a. One which is impliedly authorized by the language of the offer. b. One customarily used in prior dealings between the parties. c. The same one used by the offeror in making the offer. d. all of the above

D. All of the Above. All of the above, in addition to being customary trade practice, are generally considered reasonable for purposes of the reasonable medium rule.

If WalCo was suing Bob for misappropriation of a trade secret, which of the following would be the most important to establish? a. WalCo maintained reasonable measure to protect security b. The information was actually a trade secret c. Bob did not simply reverse engineer the product. d. All of the above.

D. All of the Above. If Bob proves any of the answers to be false, he would win the case because WalCo would have failed to establish a cause of action for trade secret misappropriation

Which of the following is one of the several general requirements that must be met in order for a particular communication to achieve the legal status of an offer? a. A reasonably definite indication of what the offeror and the offeree are to do. b. A manifestation of an intent to contract. c. A communication of the proposal to the intended offeree. d. All of the above.

D. All of the above are general requirements formulated by courts that must be met in order for a particular communication to achieve the legal status of an offer.

True or False: All judges in a panel for a circuit court must agree on the outcome of the case and the reasoning used to justify the outcome.

If a judge does not agree with the majority of the case, he can write a concurrence if he disagrees with the reasoning and agrees with the outcome, or a dissent if he disagrees with the outcome. The correct answer is 'False'.

Xeon, a manufacturing company, sells product X to John's store, which in turn sells it to Paul. X is a product designed to cure baldness of the head, but Paul attempted to use it to increase body hair on his right hand. Prior to selling the product to Paul, John, the owner of John's store, contacted Xeon to ensure that the product was safe for those uses. After Xeon confirmed this, John told Paul that his hand would have hair if he used the product and that he will be happy with his new hairy hand. Following this, Paul uses the product on his hand. To his dismay, not only does hair not grow on his hand, but the product causes severe scarring. Which of the following types of warranties were not made? a. Warranty of Title. b. Implied Warranty of Fitness for a Particular Purpose. c. Implied Warranty of Merchantability. d. Express Warranties. e. All of the above were made.

D. All of the above warranties were made. A warranty of title is implied for every sale. There is an implied warranty of fitness for a particular purpose stemming from John's knowledge that the product will actually be used to grow hair on his hand. There is always an implied warranty of merchantability if the seller is a merchant with respect to the type of goods being sold, which John is. This warranty assures that the product will actually be able to cure baldness. And there is also an express warranty guaranteeing that the product can cause hair to grow on a hand.

If Joe follows the recommendations of his coworkers, which of the following tendencies did he most likely follow? a. Role Morality b. Self-Serving Bias. c. Obedience to Authority d. Conformity Bias

D. Conformity Bias. Because he is conforming to the actions of his coworkers, it is likely that conformity bias influenced his decision.

Which of the following is not a defense against a strict liability claim? a. Unreasonable assumption of risk. b. Unforeseeable misuse of the product. c. Material Alteration of the product by the buyer. d. Contributory negligence of the plaintiff.

D. Contributory negligence is only a defense against a negligence claim. Some states do considered comparative fault to be a partial defense for a strict liability claim.

Under the UCC, which of the following is not a path a court may take after finding a contract unconscionable? a. Refusing to enforce the contract b. Enforcing the remainder of the contract without the unconscionable clause. c. Limit the application of any unconscionable clause so as to avoid any unreasonable result d. Enforce punitive damages against the offending part

D. Enforce punitive damages against the offending party. A court may not enforce punitive damages against a party for creating an unconscionable contract. The court may, under the UCC, do A, B, or C.

If WalCo was suing Bob for misappropriation of a trade secret, which of the following would be the most important to establish? a. WalCo maintained reasonable measure to protect security. b. The information was actually a trade secret. c. Bob did not simply reverse engineer the product. d. All of the above.

D. If Bob proves any of the answers to be false, he would win the case because WalCo would have failed to establish a cause of action for trade secret misappropriation.

Which of the following is a doctrine used to presume negligence from the fact that an accident occurred? a. Animus Nocendi b. Actus Reus c. Implied Warranties. d. Res Ipsa Loquitur.

D. Res Ipsa Loquitur. Res Ipsa Loquitur is a doctrine used to presume the negligence of a defendant from the fact that an accident occurred. The plaintiff must show that the defendant controlled the product and that the injury would not normally occur absent someone's negligence.

What happens when an appellate court finds that a lower court judge erred in granting summary judgment? a. The court reverses the judgment and the party that lost the summary judgment wins b. The appellate court retries the case and announces a new verdict. c. The case is dismissed d. The case is remanded to the lower court with instructions on what the lower court erred on and how to properly try the case.

D. The case is remanded to the lower court for a new trial. The appellate court includes instructions stating how the lower court erred and how to properly try the case.

When does a federal regulation preempt a state commerce regulation?

If a particular governmental power is exclusively federal; may be express or implied

In a contract for a sale of widgets, which of the following mutually-agreed upon changes would not require consideration? a. The change requires the rest of the widgets to have higher specifications. b. The change requires the widgets be completed earlier. c. The change requires another shipment of widgets two months after the final shipment. d. All of the above.

D. UCC § 2-209(1), allows for the mutual modification of all of these without further consideration.

Which of the following is generally not considered when deciding whether an individual is able to receive "bystander recovery" from a negligence claim? a. Whether the emotional shock resulted from a contemporaneous perception of the accident. b. Whether the plaintiff and the victim were closely related. c. Whether the plaintiff was located near the scene of the accident d. Whether the plaintiff and the defendant were closely related.

D. Whether the plaintiff and the defendant were closely related. Whether the plaintiff and the defendant were closely related is generally not considered when determining if a plaintiff is able to receive "bystander recovery."

Which of the following is a reason for the increasing popularity of arbitration? a. The parties have more control over the process. b. The proceeding can be kept private. c. No expensive pretrial discovery. d . All of the above

D. all of the above. All of the above are advantages parties often see in arbitration. For these reasons, it can be cheaper, faster, protect business relationships better, and prevent certain details from being released to the public.

Which of the following is an example of a reason for which a contract may be voidable? a. One of the parties is a minor b. One of the parties is mentally incompetent. c. One of the parties committed fraud. d. all of the above

D. all of the above. All of the above are examples of when a contract may be voidable

Which of the following is an example of when a superior may be held liable for the tortious actions of a subordinate? a. The superior is negligent in failing to properly supervise the subordinate. b. The superior directs the subordinate to commit the tort. c. The superior allows the subordinate to operate potentially dangerous equipment when he knows or should know the subordinate is unqualified or incapable of handling it safely d. All of the above.

D. all of the above. All of the above are likely to cause the superior to be found liable for the subordinate's actions. In each of these cases, the principal is at fault and not held merely vicariously liable for the agent's wrongdoing.

A contractual right cannot be assigned if which of the following is (are) true? a. The terms of the contract expressly prohibit assignment. b. The contract is "personal" in nature; the right in question involves a substantial personal relationship between the original parties c. The assignment would materially alter the duties of the obligor d. all of the above.

D. all of the above. These reasons would all block an assignment

What are remedies for copyright? For willful infringement? For multiple offenses?

Damages: "statutory damages" of $750 to $30,000 per act of infringement, up to $150,000 per infringing act for willful infringement. Can also constitute a federal crime which can be punishable by fines or imprisonment of up to 5 years for a first offense and 10 years for second and later offenses

What is a reasonable period of time for a lapse of time to end an offer? How is this decided?

Decided by language used in the offer, means of communication used by the offeror (sending the offer by overnight express (express mail or courier service) normally implies an urgency that the use of regular mail does not), prevailing market conditions (If the price of a commodity is fluctuating rapidly, for example, a reasonable time might elapse within hours or even minutes from the time the offer is received), and/or method by which the parties have done business in the past.

Beachcomber Coins v. Boskett *Argument* =

Defendant's contention that plaintiff assumed the risk that the coin might be of greater or lesser value is not supported by the evidence. It is [true that] a party to a contract can assume the risk of being mistaken as to the value of the thing sold. (The Restatement states the rule this way) However, for this rule to apply, the parties must be conscious that the pertinent fact may not be true and make their agreement at the risk of that possibility. [That rule is not applicable] in this case, because both parties were certain that the coin was genuine....

Assault vs. battery defenses

Defendants can raise, among other defenses, that the plaintiff consented to the contact, that the defendant acted in self defense, and that the statute of limitations expired.

Dempsey v. Rosenthal - premise

Dempsey buys a poodle from Rosenthal. Poodle has one un-descended testicle. Rosenthal refuses to take poodle back. Dempsey sues claiming breach of the implied warranties of merchantability and fitness.

The key to descriptive trademarks...

Descriptive can only be trademarked after they reach "secondary meaning" - only after consumers believe the descriptive term refers to only one product

Sorrell v. IMS Health Center: *information* =

Detailers sell drugs to doctors. They can do this better if they have good information on what a doctor has prescribed in the past. Pharmacies can sell this information to data-miners, who leverage it and sell it to detailers. Vermont passed a law preventing the sale of this information because the goals of the marketers were in conflict with those of the state, detailing often causes doctors to make decisions based on incomplete and biased information, and excessive reliance on name brand drugs drives up health care costs.

Sorrell v. IMS Health Center - premise

Detailers sell drugs to doctors. They can do this better if they have good information on what a doctor has prescribed in the past. Pharmacies can sell this information to data-miners, who leverage it and sell it to detailers. Vermont passed a law preventing the sale of this information because the goals of the marketers were in conflict with those of the state, detailing often causes doctors to make decisions based on incomplete and biased information, and excessive reliance on name brand drugs drives up health care costs. The Court of Appeals reversed, holding that it burdened free speech without adequate justification

Things individuals can do to maximize ethical values:

Develop moral identity, keep ethical antennae up, monitor your own rationalizations, pre-script

What are the aids to interpretation in order of use?

Dictionary, textual context, legislative history, circumstantial context, and precedent/similar statute

What is consideration?

Did the promiser suffer a legal detriment such as doing (or promising to do) something that it was not obligated to do, or refraining from doing (or promising to refrain from doing) something that it had a right to do? The detriment must induce the promise that was not performed and the the promise must induce the detriment (aka bargained-for exchange).

Hunt v. Washington State Apple Advertising Commission - argument and outcome

Discrimination against interstate commerce: North Carolina was really engaging in economic protectionism by placing Washington apples at a disadvantage in the North Carolina market Unduly Burdening: law would impose substantial economic inefficiency on the selling of Washington apples in North Carolina

True or False: Johnny, a citizen of Texas, and Ash, a citizen of Texas, sue AJ, a citizen of Alabama, and Jeff, a citizen of Florida, for $100,000 from a claim arising from state law. This case can be brought in federal court.

Diversity of Citizenship allows for a case to brought in Federal Court when there is diversity of residency between parties and the claim is for at least $75,000. The residency requirement only applies when opposing parties are from the same jurisdiction. The correct answer is: True

Doughty v. Idaho Frozen Foods Corp - outcome

Doughty contends the contract is unconscionable because the price decreases are steeper than the price increases. Doughty also contends that it was unconscionable for IFF to have the option not to accept the potatoes if they consisted of less than ten percent ten-ounce or larger size potatoes. There was no indication that Doughty was forced by "extreme need" into the contract. Doughty was not dissatisfied with the contract until his crop produced small potatoes. There is no indication that Doughty tried or wanted to negotiate different terms under the contract. Affirmed

How is a case removed from federal to state court? When does the defendant have the right of removal?

If a plaintiff files in a state court, the defendant may have the right of removal to have the case moved to a federal district court in the same geographic area. The defendant has a right of removal in any federal question case, or in diversity of citizenship cases, except in the situation where the plaintiff filed the suit in the state where the defendant is a citizen

Knight vs. Just Born: *Argument* =

If a product fails in an unusual, unexpected fashion, "the inference is that there was some sort of defect, a precise definition of which is unnecessary." In order to satisfy the consumer expectations test, a plaintiff must prove: "(1) what an ordinary consumer would expect from the allegedly defective product, and (2) that the product failed to meet those expectations." the Hot Tamale which he consumed did not live up to either the explicit representation of great taste or the implicit representation of safe to eat.

Doughty v. Idaho Frozen Foods Corp - premise

Doughty was to receive a base price if the potato crop contained a certain percentage of potatoes weighing ten ounces or more. If the crop contained a higher percentage, the price would be increased; if it contained a lower percentage, the price would be decreased. Size was critical to IFF's processing needs. The contract provided that IFF could refuse any deliveries containing less than 10 percent ten-ounce or larger potatoes. Only 8 percent of Doughty's potatoes being ten-ounces or more, so he was entitled to only $2.57 per hundredweight under the IFF contract. Doughty breached the contract, delivering the remainder of his potatoes to the "fresh pack" market where he could receive $4.69 per hundredweight. Doughty then filed this declaratory judgment action, asking the court to declare the contract unconscionable and therefore not binding on him. The trial Judge ruled for IFF and Doughty appealed.

Which of the following is a circumstance or factor that the courts consider in deciding what is a reasonable amount of time until an offer lapses due to passage of time? Select one: a. Prevailing Market Conditions, such as the change in market value. b. Language used in the offer. c. Means of communication used by the offeror. d. The method by which the parties have done business in the past. e. All of the above.

E

Which of the following is an element required for a cause of action under defamation? Select one: a. The statement was made as though it were a fact. b. The statement was defamatory. c. The statement was false d. The plaintiff's reputation was harmed. e. All of the above.

E

Which of the following is, according to Benjamin Cardozo, a "directive force" which shapes the law? Select one: a. Philosophy. b. History. c. Custom. d. Social Welfare. e. All of the above.

E

Xeon, a manufacturing company, sells product X to John's store, which in turn sells it to Paul. X is a product designed to cure baldness of the head, but Paul attempted to use it to increase body hair on his right hand. Prior to selling the product to Paul, John, the owner of John's store, contacted Xeon to ensure that the product was safe for those uses. After Xeon confirmed this, John told Paul that his hand would have hair if he used the product and that he will be happy with his new hairy hand. Following this, Paul uses the product on his hand. To his dismay, not only does hair not grow on his hand, but the product causes severe scarring. Which of the following types of warranties were not made? Select one: a. Warranty of Title. b. Implied Warranty of Fitness for a Particular Purpose. c. Implied Warranty of Merchantability. d. Express Warranties. e. All of the above were made.

E

Which of the following is a circumstance or factor that the courts consider in deciding what is a reasonable amount of time until an offer lapses due to passage of time? a. Prevailing Market Conditions, such as the change in market value. b. Language used in the offer. c. Means of communication used by the offeror. d. The method by which the parties have done business in the past. e. All of the above.

E. All of the above are circumstances or factors that the courts consider in deciding what is a reasonable amount of time until an offer lapses due to passage of time when the offer itself did not state when it would expire.

Knight v. Just Born - outcome

If a product fails in an unusual, unexpected fashion, "the inference is that there was some sort of defect, a precise definition of which is unnecessary." In order to satisfy the consumer expectations test, a plaintiff must prove: "(1) what an ordinary consumer would expect from the allegedly defective product, and (2) that the product failed to meet those expectations." the Hot Tamale which he consumed did not live up to either the explicit representation of great taste or the implicit representation of safe to eat. Although Mr. Knight is not entitled to summary judgment on this claim, he is nonetheless entitled to present his case to a jury. Therefore, both motions for summary judgment are denied.

Xeon, a manufacturing company, sells product X to John's store, which in turn sells it to Paul. X is a product designed to cure baldness of the head, but Paul attempted to use it to increase body hair on his right hand. Prior to selling the product to Paul, John, the owner of John's store, contacted Xeon to ensure that the product was safe for those uses. After Xeon confirmed this, John told Paul that his hand would have hair if he used the product and that he will be happy with his new hairy hand. Following this, Paul uses the product on his hand. To his dismay, not only does hair not grow on his hand, but the product causes severe scarring. Which of the following types of warranties were not made? a. Warranty of Title. b. Implied Warranty of Fitness for a Particular Purpose. c. Implied Warranty of Merchantability. d. Express Warranties e. All of the above were made

E. All of the above were made. All of the above warranties were made. A warranty of title is implied for every sale. There is an implied warranty of fitness for a particular purpose stemming from John's knowledge that the product will actually be used to grow hair on his hand. There is always an implied warranty of merchantability if the seller is a merchant with respect to the type of goods being sold, which John is. This warranty assures that the product will actually be able to cure baldness. And there is also an express warranty guaranteeing that the product can cause hair to grow on a hand.

Which of the following is an element required for a cause of action under defamation? a. The statement was made as though it were a fact b. The statement was defamatory. c. The statement was false d. The plaintiff's reputation was harmed. e. all of the above

E. All of the above. All of the above are elements of defamation. The statement also must be communicated by the defendant to at least one other person.

Which of the following is, according to Benjamin Cardozo, a "directive force" which shapes the law? a. philosophy b. history c. custom d. social welfare e. all of the above

E. all of the above. Cardozo believed that each of the above playing an important role as a directive force in guiding how law will be made and changed.

How does the Anti-cyber-squatting consumer protection Act (ACPA) determine if someone is a cybersquatter?

Eight questions, four of which determine if intent was good, four of which determine if intent was bad.

Texas A&M v. Bishop Focused on what?

Employer-employee/independent contractor distinction

Civil Rights Act Exclusions =

Employers must have at least 15 employees before the Civil Rights Act is applicable, although many states have similar laws banning discrimination by even smaller companies. A company under some circumstances may hire only U.S. citizens without illegally discriminating based on national origin. Sexual orientation discrimination is not considered "sex discrimination" under the Civil Rights Act. Sex discrimination under this law means based on gender only. Also, religious organizations may discriminate in favor of members of their own faith.

Importance of business ethics:

Employers today are very cognizant of the costs they will likely incur if their employees act unethically. The level of trust in a society is the best predictor of prosperity, and nothing undermines trust more thoroughly than unethical actions Because of social media and improved surveillance techniques by the government, it is harder than ever for individuals to get away with wrongdoing

What is common law based off of?

English Common Law; exists in countries historically ruled by England

What is the goal of the regulations on information sharing?

Equal access (not equal information)

What is the Convention on Contracts for the International Sale of Goods (CISG)? When does it apply?

Essentially an international version of the UCC. In a sale of goods transaction in which the seller and buyer are from different nations, and both nations have adopted the treaty, the CISG is the governing law unless the seller and buyer expressly agree that some other body of law should apply

What was the World Trade Organization's contribution to patent law? What does it protect?

Established TRIPS (trade related intellectual property rights) which set minimum requirements for intellectual property protection in all member nations including trademarks, trade secrets, patents, and copyrights

What is misappropriation? Give an example

Even if an act isn't inherently illegal, it can be considered misappropriation if information is obtained or disseminated in improper context if there is an implied or express obligation not to do so Ex. Employees moving to another company and sharing their old company's cement recipe, taking aerial photos of a construction site

More to trade secrets...

Even if something counts as a trade secret, a company does not necessarily have exclusive rights to make use of it Similarly, reverse engineering is acceptable. If a company can take a competitor's product apart and figure out how to make it, then it has engaged in no wrongful action if the competitor relies on trade secret protection.

True or False: If a plaintiff properly proves all the necessary elements of his claim, he can still lose a civil case.

Even if the plaintiff proves all the necessary elements of his claim, the defendant may still escape liability by properly proving an affirmative defense. The correct answer is 'True'.

What is the duty of good faith?

Every contract imposes an obligation of good faith in its performance or enforcement

What is prior art?

Evidence of what others have previously done in the relevant technology field including a patent anywhere else in the world, a printed publication anywhere else in the world, evidence of a public use of the invention somewhere in the US even if that use was not enabling, or sale of the item somewhere in the US

Specialized US Trial Courts

Ex: US tax court, or US court of Federal claims somewhat analogous to the courts of limited jurisdiction in state court systems

example of promissory estoppel

Example: Tenant T leases a building from Landlord L from January 1, 1985, to December 31, 1986. In early December 1986, T indicates that he is thinking of remodeling the premises and wants a renewal of the lease for another two years. L replies, "We'll get to work on a new lease soon. I don't know about two years, but you can count on one year for sure." T then spends $500 over the next few weeks in having the first-floor rooms painted, but the parties never execute a new lease. If L seeks to evict T in March 1987 on the ground that his promise to renew was not supported by consideration, he will probably be unsuccessful—that is, he will be held to his promise regarding the year 1987. In this case, where L should have realized the likelihood of T's conduct in consequence of his promise, L is said to be "estopped by his promise"

If warranties are conflicting, what takes precedence?

Express always takes precedence over implied.

Express, implied, and quasi-contracts

Express: parties involved have fully and specifically stated the terms of the deal Implied: even in absence of express, sometimes inferred by courts after examining the conduct of the parties Quasi-contracts: concept of unjust enrichment

T/F: Registration of a Trademark or Copyright is necessary:

FALSE

T/F: Mediators and arbitrators have equal power in deciding cases

FALSE - Have no power to decide cases - they are a neutral person in a dispute

T/F: Factual errors are great for appeals

FALSE - terrible for appeals - doesnt work usually *legal errors work

Kurns v. Railroad Friction Products Corporation - premise

Factory worker Kurns alleges that brakeshoes have asbestos in them; handling them damaged his health causing him to die years later. Railroad moves for a summary judgement on the grounds that petitioners' state-law claims were pre-empted by the Locomotive Inspection Act (LIA). The court granted and the supreme court granted certiorari.

True or False: A UCC contract must have all details, such as delivery date and the exact price, included in order to be considered complete.

False

True or False: A contract for the sale of corn is not considered a sale of goods, for the purposes of Article 2, if the corn will be severed from the land by the buyer.

False

True or False: A contract of adhesion is one in which there is a certain amount of bargaining between the parties used to decide the exact details of the contract.

False

True or False: A contract requiring that an illegal action take place is a voidable contract.

False

True or False: A copyright is any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale.

False

True or False: A copyright is within the scope of Article 2.

False

True or False: A merchant's verbal promise to keep an offer open for two weeks, in the absence of paid consideration, is binding under Article 2.

False

True or False: A minor can receive a full refund is she disaffirms a contract for necessaries.

False

True or False: A person commits trade secret misappropriation only when he acquires information in a way that is independently illegal, such as committing a burglary.

False

True or False: A special power of attorney grants an agent more powers those included in a general power of attorney.

False

True or False: A trademark consisting primarily of a geographic designation or someone's last name does not require a secondary meaning

False

True or False: Addiction is a protected disability under the ADA for current users of drugs.

False

True or False: All assignments of contractual rights must be in writing.

False

True or False: All contracts for a sale of goods exceeding $500 must be in writing in order to be enforceable.

False

True or False: An employer can never be held liable for the tortious actions of an independent contractor.

False

True or False: An individual attempting to make a case for disparate impact can compare employment statistics of the company with general population statistics when the job requires special qualifications.

False

True or False: An individual cannot be held liable on a negligence theory for the criminal acts of a third party.

False

True or False: An individual cannot recover for emotional damages absent physical injury in a negligence case.

False

True or False: An intent to harm is necessary to establish a case for trespass.

False

True or False: An invention must be manufactured in order for the inventor to file a patent application on the item.

False

True or False: An oral contract for more than $500 can be enforced under the UCC only if the defendant admits in his pleading or testimony that a contract was made.

False

True or False: Bailors have a duty of reasonable care in taking care of the property.

False

True or False: Being closer to the outcome of a situation often causes an increased chance of immoral action.

False

True or False: CFOs are more likely to cook the books in order to benefit themselves financially than to do so in order to benefit another.

False

True or False: Contracts involving wagers are usually legal.

False

True or False: Employees and independent contractors both normally create liability for their principals when they commit torts within the scope of their employment.

False

True or False: Hypernorms are value which are considered extremely important in some cultures.

False

True or False: If A shoots at B, but accidentally hits C, A is not liable for a battery against C because he had no intent to injure C.

False

True or False: If objects in a bailee's care are destroyed, the bailee must replace the objects regardless of the reason for the destruction.

False

True or False: In a UCC contract, both parties agree to "market value" for the price. The contract is void because a material term is left open.

False

True or False: In a potential unilateral contract situation, the offeror may always revoke the offer at any point prior to the act being completed.

False

True or False: In order for a combination of things to be considered a trade secret, all of the individual pieces must be a trade secret.

False

True or False: In order for duties of a contract to be delegated, the rights of the contract must be assigned as well.

False

True or False: In order to have a copyright, material must be registered with the U.S. Copyright Office.

False

True or False: In order to maintain a descriptive trademark, the entity with the trademark must prove that the term suggests some particular characteristic of the goods or services to which it applies and requires the consumer to exercise the imagination in order to draw a conclusion as to the nature of the goods and services.

False

True or False: Individuals are often more likely to commit wrongs in order to enjoy gains than to prevent loss.

False

True or False: It is always up to the jury to decide if an individual breached a duty of care.

False

True or False: John Ladd's theory that corporations cannot have moral obligations is based on the concept of group dynamics.

False

True or False: Judicial Review is established in the constitution.

False

True or False: Making a payment or acknowledging a debt revives the debt and resets the statute of limitations, even if the debt has been discharged by bankruptcy.

False

True or False: Mere insults are usually sufficient for a claim of intentional infliction of mental distress.

False

True or False: Money is never treated as a good for the purposes of the UCC.

False

True or False: Motivated by a desire to make the world a better place, GAP and Nike sent employees to foreign production plants in order to make sure that workers there were treated ethically.

False

True or False: Patent rights are non-transferable.

False

True or False: Plaintiffs are able to recover punitive damages from negligence claims.

False

True or False: Promissory Estoppel is a doctrine used only to help creditors get the money owed from a debtor.

False

True or False: Purely economic interests are extremely strong factors weighing in favor of allowing a state regulation to be allowed under the unduly burdening state commerce doctrine.

False

True or False: Reverse engineering a product in order to discover a trade secret is considered misappropriation.

False

True or False: Role morality refers to the practice of following the same set of morals regardless of the role one is taking.

False

True or False: Section 2-207 of the UCC applies only to transactions between merchants.

False

True or False: The ADEA can support a cause of action by plaintiffs only if they are over 50 years old.

False

True or False: The Magnuson-Moss Warranty Act applies to all purchases and sales.

False

True or False: The Takings Clause can be applied for the government to take trade secret information from corporations.

False

True or False: The only way to terminate an agency relationship is by fulfilling the purpose for which the relationship was created.

False

True or False: Trademark infringement can happen only if a defendant intentionally copies another's trademark.

False

True or False: Uncertain and disputable debts are liquidated debts.

False

True or False: Under the UCC, all major details of an agreement must be specifically stated for that agreement to be enforceable.

False

True or False: When engaged in contact sports, all possible injuries are considered to be barred by the defense of consent.

False If an injury occurred due to an action outside the rules of the game, it occurs outside of the consent given by the plaintiff. Due to this, an injury caused by an action outside of the rules of a game may be enough to state a claim for battery. The correct answer is 'False'.

Section 2-207 of the UCC applies only to transactions between merchants.

False.

True or False: Every state has a separate Federal Court Circuit

False. There are only 13 Federal Circuit Courts

A composition agreement generally involves one creditor accepting a percentage of what he is owed from two separate debtors.

False. A composition agreement generally involves two creditors accepting a portion of what they are owed from a single debtor. This is considered binding because, in order to receive any money from the debtor, both creditors accept only a portion of what they are owed.

A contract may be modified without additional consideration under common law.

False. A contract may be modified without additional consideration under common law.

A contract of adhesion is one in which there is a certain amount of bargaining between the parties used to decide the exact details of the contract.

False. A contract of adhesion is one in which one party has such superior bargaining power it simply offers a "take it or leave it" contract. This is usually a form contract offered by a merchant.

A corporation can be held criminally liable for any act of its employees.

False. A corporation can only be held criminally liable for acts performed by an employee if that employee is acting within the scope of his or her authority for the purpose of benefiting the corporation.

In order to maintain a descriptive trademark, the entity with the trademark must prove that the term suggests some particular characteristic of the goods or services to which it applies and requires the consumer to exercise the imagination in order to draw a conclusion as to the nature of the goods and services.

False. A descriptive term merely identifies a characteristic or quality of a product or service, such as its color, odor, function, dimensions, or ingredients. A suggestive term suggests some particular characteristic of the goods or services to which it applies and requires the consumer to exercise the imagination in order to draw a conclusion as to the nature of the goods and services.

A special power of attorney grants an agent more powers those included in a general power of attorney.

False. A special power of attorney grants the agent power to act only in narrow ways and for specific purposes.

A copyright is any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale.

False. A trademark, not a copyright, is any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale.

In order to win a suit, criminal or civil, intent to perform the action in question is required.

False. Although intent is required in most criminal and some civil claims, many claims do not require any level of intent, such as negligence claims.

Purely economic interests are extremely strong factors weighing in favor of allowing a state regulation to be allowed under the unduly burdening state commerce doctrine.

False. Although they are legitimate reasons, these interests typically do not weigh as heavily as a state's interest in protecting the safety and health of its citizens or protecting them against fraudulent or other wrongful practices.

Wagers and insurance contacts are considered legal equivalents because they both depend on future possibilities.

False. An insurance contract is generally legal because the owner has an "insurable interest" in an object before taking out the policy, and insurance policies are considered acceptable risk shifting (rather than risk-creating) agreements.

Placing an item up for sale in a typical "with reserve" auction constitutes a binding offer by the seller.

False. Because no contract is formed until the hammer falls or "sold" is announced, the seller is free to withdraw the item from sale if no bids are as high as the seller desires. But a seller who advertises an item as being up for auction "without reserve," is essentially promising to sell it to the highest bidder.

A person commits trade secret misappropriation only when he acquires information in a way that is independently illegal, such as committing a burglary.

False. Conduct may be "improper," and thus constitute misappropriation, even though it is not illegal by itself.

A copyright is within the scope of Article 2.

False. Copyrights fail the tangibility requirement and, therefore, are not considered goods for the purposes of Article 2.

In order for a combination of things to be considered a trade secret, all of the individual pieces must be a trade secret.

False. Courts have concluded that a combination of things can be a trade secret, even if none of the individual elements qualifies as a trade secret.

Noncompetition agreements in employment are always enforceable.

False. Covenants related to employment contracts can be set aside as unreasonable for several reasons, such as they are too broad in terms of time, geographic scope or types of activities forbidden.

Civil law and criminal law require the same burden of proof to be established in order to prove a case.

False. Criminal law requires that the defendant's guilt be proven "beyond a reasonable doubt" while civil actions must only be proved by "a preponderance of the evidence."

Deontology focuses on the net effects of doing an individual act.

False. Deontology focuses on the act itself, rather than the consequences. This means that if, in the abstract, an act is bad, the act is never justified, regardless of its impact.

An individual cannot get out of a contract due to intoxication.

False. Disaffirmance due to intoxication is allowed, but only if a person can establish that he or she was so intoxicated as not to understand the "nature of the purported agreement". Being a little buzzed does not do the job.

In a UCC contract, both parties agree to "market value" for the price. The contract is void because a material term is left open.

False. Even though there is not an exact price term, courts allow for a contract to be found in cases where there is a way in which to accurately find the price, even if it is to be determined at a later time.

Friedman believes that corporate managers shouldn't be allowed to devote their own time and money to whatever projects they deem fit.

False. Friedman believes that managers should be allowed to do so, but that using corporate resources for such projects they are breaching their duty of loyalty to the shareholders.

All assignments of contractual rights must be in writing.

False. Generally, any words or conduct indicating an intention on the part of the assignor to transfer his rights is sufficient. Some types of assignments, however, are required by statute to be written.

A trademark consisting primarily of a geographic designation or someone's last name does not require a secondary meaning.

False. If a trademark consists primarily of a geographic designation or someone's last name, the law treats it in the same way as a descriptive mark, and secondary meaning must be proved for the mark to be protectable.

Agents are always liable to third parties if their principals are insane.

False. If the principal has not yet been declared insane, agents may not be held personally liable to the third party in many instances.

In order for an express warranty to be formed, the seller must use the word "warranty" or "guarantee."

False. If the seller's actions or other words that show the seller intended to make a warranty, this can constitute an express warranty. There are no magic words that must be used.

In order to be convicted of a criminal offense, an act must be performed.

False. If there is a legally imposed duty, a failure to perform may constitute the actus reus of a criminal offense.

State governments may outlaw corporate speech if the speech would not materially affect the business.

False. In First National Bank of Boston v. Bellotti, the Supreme Court stated that "the inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of the source." Because of this, corporate political speech is protected.

Under Title VII's rules against discrimination on the basis of national origin, an employer cannot require all employees to be U.S. citizens.

False. It is not illegal for an employer to require employees to be U.S. citizens. Discrimination on the basis of national origin beyond that, however, is prohibited.

Individuals are often more likely to commit wrongs in order to enjoy gains than to prevent loss.

False. Loss aversion, the idea that people detest losses more than they enjoy gains, causes individuals to commit wrongs to prevent losses that they likely wouldn't have to get a gain.

Being closer to the outcome of a situation often causes an increased chance of immoral action.

False. Moral distance is the idea that being further from the outcome of a situation increases the chance of an immoral act because it weighs less on one's conscience.

Contracts involving wagers are usually legal.

False. Most states have anti-wagering laws. However, more states are beginning to allow exceptions for "friendly bets."

Title VII outlaws employment discrimination by any and all businesses.

False. Only businesses with at least 15 employees that engage in interstate commerce can be sued under Title VII.

Money is never treated as a good for the purposes of the UCC.

False. Rare coins and all money treated like a commodity are considered goods, although money used as a medium of exchange is not.

Patent rights are non-transferable.

False. State law determines what is necessary to sell or otherwise transfer patent ownership. Patents are often bought, sold, and licensed.

When is personal jurisdiction required?

In any in personam case (when the plaintiff seeks a judgment that will be legally binding against the defendant)

Which of the following is necessary for a court to have in order to hear a case? Select one: a. Personal Jurisdiction. b. Proper Venue. c. Subject Matter Jurisdiction. d. All of the above.

In order for a court to hear a case, the court must have personal jurisdiction over both parties, be a proper venue, and have jurisdiction over the subject matter of the case. The correct answer is: All of the above.

What is intermediary protection?

In some states an intermediary is protected from section by requirements that the manufacturer be sued instead of the intermediary

TM example: University of Texas v. KST Electric.

In the case, a company created several logos that were very similar to the longhorn silhouette that graces the sides of UT football helmets (and millions of caps, coffee mugs, and t-shirts).

What is a motion for judgment notwithstanding the verdict (or motion for judgment N. O. V)? Why does it exist? What is this known as in federal court?

In the federal system, this motion is now called a renewed motion for judgment as a matter of law (JMOL). Asserts that the judge should have granted a directed verdict in favor of the movant and should not have let the case go to the jury because the evidence was so one-sided in the movant's favor. Must be filed within 10 days "safety valve" if a jury goes completely against the evidence.

What is the open price provision? What is the fill in if the contract comes under scrutiny before price is decided?

In transactions where price is secondary, price is sometimes left unspecified. Under the UCC this is still enforceable. If the parties left the price term open for later agreement and then failed to agree, the court should fill in a "reasonable price at the time of delivery."

Does the CISG abide by the mirror image rule? What is the mirror image rule?

Includes a provision that is virtually identical to the common-law "mirror image" rule. An acceptance containing a term that materially adds to or changes the offer is a counteroffer rather than an acceptance.

What are defenses against intent?

Infancy, insanity, mistake, intoxication, self-defense, entrapment (criminal plan originates with the police who implant in the mind of an innocent person the disposition to commit the offense in order to prosecute the defendant)

Three basic requirements for an offer:

Intent to contract A reasonably definite indication of what the offeror and offeree are supposed to do Communication of the proposal to the intended offeree

What are defenses against strict liability?

Intermediary protection, sophisticated purchaser, plaintiff misconduct

What constitutes discrimination against interstate commerce?

Involves a question of intent. States may not shelter their own industries from competition emanating from other states or nations, though congress can. They may act to preserve their own natural resources, but cannot do so by discriminating against out-of-state buyers. They also cannot require that business operations that could be conducted more efficiently elsewhere take place within the state

How do we distinguish a good from a service?

Is the predominant factor, thrust, and purpose of the transaction as a selling a good or supplying a service? Ex. Giving blood to a patient, dying a person's hair

What happens to a debt if the statute of limitations on a promise runs?

It does not disappear but the creditor cannot maintain an action in court to collect the debt

Webster v. Blue Ship Tea Room - outcome

It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds. Judgement for the defendant

What is a requirement to specify that something is a good under the UCC?

It must be tangible and movable

Being ethical takes...

It often takes conscious action on a person's part to activate the cognitive portion of their brains to carefully reason through an ethical issue to determine whether an intuitive judgment that you have automatically made should be overridden.

UT v. KST Electric - premise

KST electric used a modified version of the discontinued longhorn logo for their store and is sued by UT. KST motions for summary judgement.

Knight v. Just Born - premise

Knight eats hot Tamales a lot. One time he eat one and it causes his mouth to swell, skin to come off, headaches, and inability to eat or swallow for days. He sues under strict liability and both sides move for summary judgement.

Knight vs. Just Born: *Premise* =

Knight eats hot Tamales a lot. One time he eat one and it causes his mouth to swell, skin to come off, headaches, and inability to eat or swallow for days. He sues under strict liability and both sides move for summary judgement.

Standard fires Ins Co v Knowles - premise

Knowles filed this case in state court against Standard Fire Insurance Co. o In an attempt to keep his lawsuit in state court, Knowles stated in the complaint that he would not seek to recover $5 million or more. The issue in the case was whether that stipulation removed the case from CAFA's scope.

Kelo v. City of New London - premise

Landowners sued for an 'illegal taking' when the government took their land in exchange for just compensation to improve economic development. This is not a case in which the City is planning to open the condemned land to use by the general public.

Larami Corp. v. Alan Amron & Talk to me Products - premise

Larami sells the super soaker water gun and TTMP thinks it infringes on aa water gun that they've created Larami brought this action for a declaratory judgment that the "SUPER SOAKER" does not infringe and that the '129 patent is invalid

Larami Corp. v. Alan Amron & Talk to me Products - outcome

Larami's water guns do not have a chamber or tank inside the gun. Instead, Larami's water guns have water tanks attached to the outside of the water gun. The court granted Larami's motion for summary judgment that Larami's water guns did not literally infringe

Why is it sometimes hard to identify trolls?

Large corporations engage in troll-like behavior but aren't actually trolls; they buy the patent rights from the original inventors who often are not legally sophisticated and are unable to adequately protect their intellectual property rights. They pay the original inventors for their patents, and sometimes a share of whatever licensing revenue they later collect

What is the requirement of certainty?

Laws must be understandable to the common man or they are considered unconstitutionally vague

Association for Molecular Pathology v. Myriad Genetics - outcome

Laws of nature, natural phenomena, and abstract ideas are not patentable. cDNA is patentable, BRCA testing is not

Assembling juires:

Lawyers on both sides have a chance to ask questions of prospective jurors during voir dire- after questions- lawyers have two tools that they can use to prevent a prospective juror from being seated on the jury. With peremptory challenges, lawyers can send a limited number of prospective jurors home without stating any reason in particular.

What are the rules regarding a service of summons by alternatives to personal service of summons?

Leave summons at the place of residence with someone of age, leave the summons at the place of business, mail the summons, email, facebook message, or tweet the summons

What is the difference between legal and moral standards?

Legal standards are usually backed by moral standards, but violating a legal standard results in a binding concrete sanction.

What is privity?

Legal term for the direct relationship between buyer and seller (i.e. you can sue the seller but not the manufacturer)

Separation of powers:

Legislative- creates laws Executive- enforces laws Judicial- interprets laws

Why are laws still vague sometimes?

Legislatures sometimes draft statutes with an element of "deliberate imprecision," intentionally giving courts a degree of latitude in applying the statute.

Leonard vs. PepsiCo: *Premise =

Leonard saw a television commercial advertising a promotion that defendant PepsiCo was sponsoring for its products which stated that one could accumulate "points" by buying Pepsi products and exchange the points for merchandise with the Pepsi logo on it. At the end of the ad, a high school student was shown landing a Harrier Jet at a school with a subtitle indicating that the cost of the jet was 7 million points. Plaintiff sought investors and accumulated $700,000, enough to purchase 7 million points. He sent a check to defendant and demanded his jet. Defendant refused. Plaintiff filed this suit for breach of contract. Defendant moved for summary judgment. The following ruling was later affirmed by the Court of Appeals.

Leonard v. Pepsico - premise

Leonard saw a television commercial advertising a promotion that defendant PepsiCo was sponsoring for its products which stated that one could accumulate "points" by buying Pepsi products and exchange the points for merchandise with the Pepsi logo on it. At the end of the ad, a high school student was shown landing a Harrier Jet at a school with a subtitle indicating that the cost of the jet was 7 million points. Plaintiff sought investors and accumulated $700,000, enough to purchase 7 million points. He sent a check to defendant and demanded his jet. Defendant refused. Plaintiff filed this suit for breach of contract. Defendant moved for summary judgment. The following ruling was later affirmed by the Court of Appeals.

Libel

Libel is written defamation and does not require a showing of special damages

What is a state-sponsored wagering contract? Why are companies able to do this sometimes too?

Lottery; a scheme that does not require a purchase of goods by the participant is not a lottery because consideration is lacking. That is why so many contests state "no purchase necessary."

What is the Economic Espionage Act?

Makes it a federal crime to steal trade secrets

State laws

Many laws are created by individual states and are binding only in that single state.

US v. Anderson - arguments and outcome

Materiality: defendant states that the report was not material because Zomax reports were rarely accurate. This was not true. On the basis of: Anderson claims he had a preexisting plan to sell this stock, but there is no indication that the defendant announced a plan in 2000 to completely liquidate all of his Zomax stock within an eight week period during the third quarter of 2000 Nonpublic information: NASD rules require that the company issue a pre-release report when the company anticipates releasing financial information that has the potential to significantly affect trading in the stock. The defendant contends that all of this information had been available to the public but it wasn't. Affirmed.

Otis Engineering v. Clark: *Premise* =

Matheson, employee of Otis, was drunk on the job. His boss asked him to leave and escorted him to the parking lot. Matheson drove home and got into a wreck, killing the wives of Larry and Clifford Clark. The Clarks sued for wrongful death, but were dismissed because Matheson wasn't acting within the scope of his job. Court of appeals reversed.

Schupach v. McDonald's System Inc - premise

McDonald's sent a letter to Copeland giving him a "Right of First Refusal"—the right to be given first chance at owning any new franchise stores that might subsequently be established in the area. Copeland exercised this right and opened five additional stores in Omaha. Copeland sold and assigned all of his franchises to Schupach, plaintiff, with McDonald's consent. McDonald's then granted a franchise in the area in to a third party without first offering it to Schupach. Schupach brought this action for damages resulting from establishment of the new franchise, claiming that the assignment of the franchises to him also included the right of first refusal. McDonald's contended that the right it gave to Copeland was personal in nature, and thus was not transferable without its consent. Trial court ruled that the right was personal in nature, but that defendant had consented to the transfer.

Milliken v. Jacono: *Premise* =

Milliken bought a house from Jacono who failed to disclose a murder/suicide had recently occurred in the house. Believing that the market value of the house would be damaged by more than $100,000, Milliken sued. Trial judge granted a summary judgement and the plaintiff appealed.

What are three special cases in contract voidability?

Minority, mental infirmity, and intoxication.

Minors power in agreements/contracts:

Minors: Usually have substantial power to back out of agreements. They may disaffirm, or avoid, contractual obligations simply by changing their minds. There is no need to show that they were taken advantage of by an unscrupulous adult. Interestingly, minors can usually disaffirm even executed or completed contracts, such as returning a laptop for a full refund. Minors who use common carriers, buy necessaries (items required for life or health), or lie about their age are among those who cannot freely back out of all consequences of making contractual agreements.

More on agreements/contracts:

Modification contracts must be written when the original contract requires a written modification, or when the new contract as modified falls within the coverage of the statute of frauds. UCC generally requires that security agreements must be in writing, as must leases of goods for prices of at least $1000 Promises made in consideration of marriage, prenuptial agreements, and executors' contracts. In some states, also oral lending agreements

Modified comparative (negligence):

More fair system, used by most states. If plaintiff is more at fault than defendant (over 50% at fault), will not recover anything. If defendant is at fault for 55% of plaintiff's injuries, must pay 55% to plaintiff. If plaintiff is at fault for 55% of own injuries, defendant does not owe anything.

True or False: Unlike most Courts of Appeals, the Supreme Court does not divide into panels when reviewing cases.

Most Court of Appeals, if they have more than 3 members, will break into panels of 3 when deciding a case. The Supreme Court, however, always reviews a case with all nine members, outside of special circumstances. The correct answer is 'True'.

When is recovery allowed for unlicensed practitioners?

Most courts take the view in such instances that if the statute is regulatory—its purpose being the protection of the general public against unqualified persons—then the contract is illegal and recovery is denied. On the other hand, if the statute is felt to be merely revenue raising, recovery is allowed

When are exculpatory clauses given effect?

Most courts will give effect to exculpatory clauses where they involve only recreational activities, but only if it is conspicuous

What is the US District Court? How many districts are there? How many courts per state?

Most federal cases originate here. Can only hear cases specifically placed in their jurisdiction by the constitution or statute. There are 94 districts split by state lines and 1-4 courts per state based on population.

Dempsey v. Rosenthal - outcome

Mr. Dunphy's condition breached the implied warranty of merchantability because, although fertile, the dog could pass the condition on to future generations. Dempsey testified that she specified to [defendant's] salesperson that she wanted a dog that was suitable for breeding purposes; the merchant had knowledge of purpose and breached that purpose

Flagellio v. Pennsylvania Hospital - premise

Mrs. Flagiello fell and broke an ankle while being moved by two of employees of the Pennsylvania Hospital. She brought this action against the hospital alleging that the employees were guilty of negligence. The hospital moved for a judgment on the pleadings, contending that under the case law of Pennsylvania, it was well established that a charitable institution was not responsible for the wrongs of its employees. The trial court sustained this motion and entered judgment for the defendant. The plaintiff appealed to the Supreme Court of Pennsylvania.

Richards v. Flowers et al - premise

Mrs. Richards, plaintiff, wrote defendant Flowers on January 15, 1959, as follows: "We would be interested in buying your lot on Gravatt Drive. Flowers replied: "Thank you for your inquiry. Considering what I paid for the lot, and the taxes which I have paid I expect to receive $4,500 for this property. -> Jan 19th. Mrs. Richards replied: "Have agreed to buy your lot...." Jan 25th. Flowers entered into an agreement to sell the property to a third party. Mrs. Richards, sued for breach of contract.

Association for Molecular Pathology v. Myriad Genetics - premise

Myriad Genetics (respondent) discovered the precise location and sequence of two human genes, mutations of which can substantially increase the risks of breast and ovarian cancer. That information, in turn, enabled Myriad to develop medical tests that are useful for detecting mutations in a patient's BRCA1 and BRCA2 genes and thereby assessing whether the patient has an increased risk of cancer. Myriad's patents would give it the exclusive right to isolate an individual's BRCA1 and BRCA2 genes and the exclusive right to synthetically create BRCA cDNA. Myriad sues anyone testing for BRCA genes and won. Petitioner filed this lawsuit seeking a declaration that Myriad's patents are invalid

Leonard vs. PepsiCo: *Decision* =

NOT an offer* Black Friday Exception: Black Friday → If an ad specifies with enough detail about what is one sale, so it satisfies being an offer. It indicates a limited # of what is one sale → may then be seen as an offer - Rewards programs to constitute binding offers: Buy 10 coffees and you get the 11th one for free: 1st coffee and card punching is the start of the engagement of the contract. If the business ends the reward program on the 11th cup, you can say "you are legally bound to give me the 11th cup for free."

Negligence Torts

Negligence cases arise when a defendant has carelessly caused harm to a plaintiff. In order to win a negligence case, a plaintiff must demonstrate that the defendant breached a duty of care, and was a proximate cause of the plaintiff's injury.

Examples of torts:

Negligence, intentional tort (assault and battery), Defamation (libel and slander), fraud, invasion of privacy, trespass, false imprisonment, etc.

What are the three types of alternative dispute resolution?

Negotiated settlement, arbitration, mediation

Are promises on gifts enforceable?

No

Does an agreement modifying a sales contract need consideration to be binding?

No

Does full faith and credit exist internationally?

No but comity does and comity generally calls for the enforcement of another nation's court judgments

When is a state unduly burdening interstate commerce?

No intent necessary, only impact. The court balances the local interest being furthered by the state law against the degree of burden it places on interstate commerce.

Do all states use common law?

No; Louisiana uses civil law

is a contract enforceable if a offeree fulfills the terms of the contract without knowledge that the contract existed? Give an example.

No; ex. A city council, via a public advertisement, offers to pay $200 to the person or persons who apprehend an escaped criminal. If X captures the fugitive on his farm, only to learn of the offer later, his act does not constitute an acceptance of the offer and he is not entitled to the reward under the principles of contract law

Is the law equivalent to justice? What type of justice does the law seek?

No; it can't be because no one can agree on what justice means. Therefore the law seeks to achieve substantial justice.

Are statutory laws strictly worded?

No; they are open to interpretation by the courts.

Hunt v. Washington State Apple Advertising Commission - premise

North Carolina law that required all apples sold in the state to have only the applicable grade under U.S. Department of Agriculture grading standards stamped on the crates; state grades were expressly prohibited Washington state grades were superior to the comparable federal ones. If they still wanted to sell apples in North Carolina, Washington apple growers would have to segregate apples intended for shipment there and package them differently

What is mediation? What are the goals?

Not legally binding. Make the parties think of solutions to their problems that can benefit both sides, build trust, make parties understand one another's side

What is an In Rem case? Who has jurisdiction? Does the government need personal jurisdiction in this case?

Occurs when property is the object of an action rather than a person (lost, abandoned, foreclosed property). State and federal courts inherently have in rem jurisdiction over any item of property located in the forum state. o If a notice of the lawsuit is published in a newspaper of general circulation in the area where the property is located, the court has power to render a judgment affecting the status of title to the property even without having personal jurisdiction over the owner of the property

Who writes the appellate court's decision? What are concurring and dissenting opinions?

One judge writes a decision for the court. If a judge does not agree with some of the reasoning or language of the opinion but still agrees with the overall result, he or she may write a separate concurring opinion. If the decision is not unanimous, a judge who disagrees with the majority decision can write a dissenting opinion

What is undue influence? Give an example

One party so dominates the will of the other that the latter's volition actually is destroyed (ex. one person, as the result of advanced age and physical deterioration, begins to rely more and more upon a younger acquaintance for advice until the point is reached where the older person's willpower and judgment are almost totally controlled by the dominant party)

Undue Influence

One person is found to dominate the will of another. Especially when a young nurse or relative induces a very old (and wealthy) individual to sign over assets in a way that seems to take extreme advantage of the relationship, courts will sometimes allow parties to escape liability for agreements.

What is a merchant?

One who "deals in goods of the kind" that are involved. 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." (ex. Building contractor). One is also a merchant if he or she employs a merchant to act in his or her behalf in a transaction. Essentially if you have a degree of commercial expertise not found in a member of the general public you're a merchant

The Restatement (Second) of Torts summarizes the elements of a strict liability case in this way -

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if: a. the seller is engaged in the business of selling such a product, b. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Is an attorney allowed to ask leading questions in a direct examination?

Only if they call an adverse witness (a witness from the opposing party)

What is the Fixation in a Tangible Medium requirement?

Only protectable if the work "can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

Ashcroft v. Iqbal - premise

Pakistani Muslim, Javaid Iqbal, claims he was unfairly detained and subject to harsh conditions on account of his race, religion, and/or national origin. Iqbal was of high interest in the investigations following the September 11th attacks and was detained in maximum security. He pleaded guilty to his charges and was removed to Pakistan. He then filed a Bivens in the US district court against 34 current and former federal officials and 19 "John Doe" federal corrections officers

Bilateral v. Unilateral contract

Parties exchange promises v. when an offer can only be accepted by actually doing something and not by merely promising to do something

What is a peremptory challenge?

Permit the attorney to have a prospective juror removed without giving any reason for doing so. Limited number. Cannot be done on basis of race.

Fraserside IP, LLC v Youngtek Solutions Ltd. - premise

Plaintiff Fraserside, an Iowa corporation, filed a copyright and trademark infringement lawsuit in Iowa federal court against defendant Youngtek, a Cyprus-based company. Youngtek sold some of Frasersides's movies and used some of its trademarked symbols on its own website. Youngtek moved to dismiss claiming that the court lacked personal jurisdiction over it.

Lucier v. Town of Norfolk - premise

Plaintiff was asked by the Norfolk Town School Committee to submit a bid covering the transportation of students. Plaintiff submitted his bid, offering to provide transportation at $175 per week each school week for that year. The board voted to award the contract for transporting children to Lucier for the sum of $35 per day. Plaintiff refused to sign the contract, on the ground that it was not in accordance with his bid for compensation at the rate of $175 per week, but at the rate of $35 per day instead. Thereupon defendant refused to employ plaintiff and awarded the transportation contract to a third party. Plaintiff alleges that a contract was formed on his terms and was breached by defendant. (Specifically, plaintiff's argument was that his bid was accepted on August 18 when Stevens told him that the board "had voted to award him the contract.") The trial court ruled that no contract was formed in this situation. Plaintiff appealed.

Contributory negligence:

Plaintiff will not recover anything if the accident can be attributed to his/her own fault in the slightest. If plaintiff is at fault even 1% for own injuries, defendant does not owe anything.

What occurs in the pleading stage?

Plaintiff's attorney files a complaint to the court with jurisdiction asking the court to file a summons. Ends with a prayer (request) for a remedy based on the facts listed. If a plaintiff wants an injunction it is listed here.

Soldano VS O'Daniels =

Plaintiff: Soldano's (stab victim) son Defendants: Bartender and owner

How is political speech regulated? What is political speech?

Political speech is largely exempt from regulation. Money can be speech; campaign donations do not lose their free speech attributes just because they were made by corporations

Duties of agency basis:

Principals and agents have a fiduciary relationship, or one of trust and confidence, and law requires good faith from each party. It also requires that neither side keep information that relates to the agency relationship from the other. Each side also has specific duties to the other. Principals are obligated to honor the terms of employment contracts. They 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. Agents have many specific obligations to principals. They must be obedient, or obey clear instructions from a principal. They must use reasonable care. They must account for all money that is received or paid out on behalf of the principal. They must promptly notify principals of anything relevant to the principal's interests. Agents must also be loyal by not competing with their principals and by protecting confidential information. (Girard v. Myers elaborates on the duty of loyalty.)

What are defenses against injury via breach of contract damages?

Privity, Innocent bystander, plaintiff misconduct, or statute of limitations

Though there are several methods of gaining personal jurisdiction, what are the basic rules every sate must follow?

Procedural due process: adequate notice, a hearing, an impartial decision-maker, substantial contact between the defendant and the forum state

3 Elements of Consideration:

Promisees must suffer a legal detriment by promising to do something they are not already obligated to do or promising not to do something they are legally allowed to do. The detriment must induce a promise. The promise must induce the detriment.

What can make it very difficult for even a person of admirable character to live up to his or her own ethical standards all the time.?

Psychological quirks, societal pressures, organizational influences, and other situational factors

Gonzales v. Raich - premise

Raich and Monson are California residents who suffer from a variety of serious medical conditions use medical marijuana under California's Compassionate Use Act. Raich's physician believes that forgoing cannabis treatments would certainly cause her excruciating pain and could very well prove fatal. 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

What is the Restatement (Third) of Torts?

Recognizes the three types of defects, imposing liability whenever a product "departs from its intended design even though all possible care was exercised"

Red Rose Transit v. North American Bus Industries - Premise

Red Rose purchased a bus from defendant. Four years later, the bus burned up due to a short in its electrical system. The fire damaged other buses in the garage. Plaintiff sued for negligence, strict liability, and breach of warranty. Defendant moved to dismiss the strict liability and negligence theories based on the economic loss doctrine, which prohibits plaintiffs from recovering in tort economic losses which flow from a breach of contract

What is the Magnuson-Moss Warranty Act? Why does it exist?

Regulates written warranties. Does not regulate the safety or quality of consumer goods. Prevents deceptive warranty practices, makes consumer warranties easier to understand, and provides means of enforcing warranty obligations.

Quarture v. Allegheny County - outcome

Reversed because agreement did not stipulate additional compensation in case of an appeal

What are they types of termination by act of the parties?

Revocation or rejection

What is civil law based off of?

Roman Civil Law and the Napoleonic Code.

Rottner v. Avg Technologies Inc - premise

Rottner downloads PCTuneUp, but it slows down his computer and destroys his hard drive. He sues under the USS and Avg technologies moves to dismiss, saying that their product is not a good

Nat'l Federation of lndep. Business v. Sebelius - premise

Ruling on the constitutionality of the individual mandate provision of the Affordable Care Act (Obamacare), which required most Americans to buy health insurance whether they wanted to or not, as part of the statutory plan to help fund a system that would provide health insurance for everyone

Systems and Software Inc. v. Barnes - premise

SSI hired Barnes. Barnes signed a noncompetition agreement that prohibited him—during his employment and for six months thereafter—from becoming associated with any business that competes with SSI Barnes left his position with SSI and started a partnership called Spirit Technologies Consulting Group, which, like SSI, provides customer-information-systems software and service to municipalities and utilities nationwide SSI sued Barnes and requested an injunction to enforce the parties' noncompetition agreement. The trial court held for SSI and granted an injunction that prohibited Barnes from working as a consultant or otherwise with Utility Solutions or any other direct competitor of SSI. Barnes appealed.

Identify the types of contracts that must be written under the statute of frauds:

Sale of Land: occasional exceptions to this general rule, as Castillo v. Rios Contracts that are not performable in one year Promises to pay for another's debts: aka guaranty contract Sales of goods of $500 or more: special exceptions that apply under the UCC regarding specialty goods, judicial admissions, and part performance

The punishments for insider trading and other business-related crimes are more severe than ever thanks to such laws as ___________

Sarbanes-Oxley

Soldano VS O'Daniels: *Applicable Rule of Law* =

Section 327 of the restatement states "that if one knows that a third person is ready to give aid to another and negligently prevents the third person from doing so, he is subject to liability for harm caused by the absence of aid."

What regulates insider trading?

Securities Exchange Act makes it unlawful to use any deceptive devices or to contravene rules of the SEC in connection with sales or purchase of securities

Garwood Packaging PNC v. Allen & Co. - outcome

Seen as expressions of optimism and determination; these deals break down all the time. Affirmed.

Disclaiming warranties

Sellers might often disclaim, or disavow, warranties (less exposure to liability is generally a good thing). While it is extremely difficult to disclaim express warranties, implied warranties can often be limited. A seller can disclaim some warranties verbally and even more types in writing. A buyer's examination of goods can create a disclaimer. Trade usage can do the same

What are the rules regarding a service of summons by Serving to a corporation?

Serve to a registered agent or officer of the corporation

Which amendment grants the right to a trial by jury?

Seven for civil cases, six for federal criminal cases

Shattuck v. Klotzbach - premise

Shattuck sent an e-mail to the Klotzbach which contained an offer for a property. Klotzbach responded and noted that e-mail was the "preferred" manner of communication. The parties ultimately entered into a purchase and sale agreement, but prior to closing it was terminated because defendants could not procure a "wharf license" as the contract required. Later the plaintiff wrote to the defendant that he was increasing his offer to $1.825 million. The defendant responded the same day by e-mail stating "once we sign the P&S we'd like to close ASAP. Defendant later refused to perform and plaintiff sued for specific performance. Defendant raised a statute of frauds defense. Plaintiff admitted that a real estate contract must be in writing to be enforceable, but argued that the statute was satisfied by the e-mails.

What is a Judgement as a Matter of Law (JMOL) AKA a Direct Verdict?

Similar to a summary judgement but based more heavily on evidence; if reasonable minds could not differ on the factual question the judge should decide the case as a mater of law instead of sending it to a jury. Raises the question "is there a jury question in this case"?

Beachcomber coins inc. v. Boskett - outcome

Since both parties were certain that the coin was genuine the court thus reversed the judgment, and ordered rescission of the contract.

Slander

Slander refers to spoken defamation, and in slander cases, plaintiffs must prove special damages.

True or False: Appeals from specialized federal courts, such as bankruptcy courts always go to the Federal Court of Appeals.

Some appeals from specialized federal courts go to federal district courts for their appeals, while others go to Circuit Courts. The correct answer is: False

Termination of agency basis:

Sometimes the relationship ends because the agent has completely fulfilled the limited purpose of the agency relationship. The parties may specify a specific date on which the relationship will lapse, or they may specify a particular event that has the same effect. The parties may always end the relationship by mutual agreement. And usually, mutual agreement is not required; either side may normally walk away from the relationship by notifying the other. An agent may quit, or a principal may fire the agent. Sometimes, the agency relationship is automatically terminated by operation of law. The death of a principal or agent ends the relationship, as does the insanity of either party. An agent's bankruptcy ends an agency relationship if it impairs the agent's ability to act on the principal's behalf.

When an appellate court makes a decision.....

Sometimes they affirm a decision, meaning that they find no material mistakes to correct. In other cases, an appellate court does find a significant mistake and decides to reverse a decision

Main idea in Fraserside IP,LLC vs. Youngtek Solutions:

Sometimes, lawsuits can proceed without a court having personal jurisdiction over a defendant. When a court has in rem jurisdiction over property located in the same state that a court sits, it can act as a substitute for personal jurisdiction if the property is the focus of the claim. Also, even if a court does have personal jurisdiction, it may sometimes move or dismiss a case under the doctrine of forum non conveniens

Contract interpretation

Sometimes, parts of contracts are vague. When ambiguous terms must be interpreted, the UCC directs courts to resolve disputes by examining any of the following three ideas, if applicable: 1) Course of performance (what has happened in the performance of this contract?) 2) Course of dealing (what has happened when other contracts between these parties have been performed?) 3) Usage of trade (what is the industry standard for contracts of this kind?)

What are the types of federal court?

Specialized US Court, US District Court, and the Appellate courts

What is commercial speech? How is commercial speech regulated?

Speech intended primarily to propose a commercial transaction. For a commercial speech regulation to be constitutionally permissible, the Supreme Court held that (1) the speech in question must concern lawful activity and not be misleading, (2) the asserted governmental interest to be served by the regulation must be substantial, and (3) the regulation must "directly advance" the governmental interest and "not [be] more extensive than is necessary to serve that interest."

What type of law is the bulk of the law in the US?

State

Kurns v. Railroad Friction Products Corporation - outcome

State common-law duties and standards of care directed to the subject of locomotive equipment are pre-empted by the LIA. Affirmed

Shoplifting "false imprisonment" =

States have special laws called *shopkeepers statutes* that offer protection to retailers that make reasonable detentions based on probable cause to search for stolen items.

Granholm v. Heald - premise

States may not enact laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses. New York could protect itself against lost tax revenue by requiring a permit as a condition of direct shipping. This is the approach taken by New York for in-state wineries Both laws are invalidated.

Statutory Law

Statutory Law refers to legal rules created by bodies of elected representatives.

What is a suggestive trademark? How protectable is it? Give an example.

Suggests, rather than describes, some characteristics of the good sold. can be a protectable mark even without actual proof of acquired secondary meaning because courts view suggestive terms as being "inherently distinctive." Ex. Coppertone

Suntrust bank v. Houghton Mifflin Company - premise

Suntrust is the trustee of the Mitchell Trust, which holds the copyright in the award-winning novel Gone with the Wind (GWTW) by Margaret Mitchell. Alice Randall wrote the novel The Wind Done Gone (TWDG), which was published by Houghton Mifflin Co. in 2001, from the first-person, African-American slave perspective of Cynara, the fictional personal slave of Scarlett O'Hara (the main character in the original work). The author of TWDG persuasively claims that her novel is a critique of GWTW 's depiction of slavery and the Civil-War era American South. Even if there is substantial similarity between the two works, the doctrine of fair use protects TWDG because it is primarily a parody of GWTW

What is express preemption?

Supremacy Clause found in the Constitution makes federal law the "supreme law of the land." if the Constitution gives a power to the federal government, the federal government also has the authority to prohibit the states from exercising a similar power

Standard fires Ins Co v Knowles - outcome

Supreme court said that Knowles was speaking for other members of his class and cannot bind them to this stipulation, therefore the case should have been tried in federal court

Texas A&M v. Bishop: *Premise* =

TAMU's drama club engaged Michael Wonio, a local actor and director, to direct its production of Dracula. The Wonios decided that a real knife was needed for the production's dramatic final scene in which Dracula is impaled Dracula in the chest with a knife. The student playing Harker was provided a Bowie knife, and Diane Wonio fashioned a stab pad for Paul Bishop, who played Dracula, to attach to his chest to shield him from the blow. The student playing Harker missed the stab pad, driving the knife into Bishop's chest and puncturing his lung. Bishop was hospitalized for eight days, and sued TAMU under a theory of respondeat superior for the actions of its alleged employees, the Wonios. Bishop alleged in part that the Wonios were negligent in deciding to use a real knife and in failing to provide an adequate stab pad. He also alleged that the faculty advisors were negligent in failing to enforce the university's safety policy prohibiting deadly weapons on campus. Were the Wonios employees of TAMU?

T/F: Courts have concluded that a combination of things can be a trade secret, even if none of the individual elements qualifies as a trade secret

TRUE

T/F: Exclusive rights to creators is a type of intangible property right

TRUE

T/F: the court has absolute discretion in deciding who is important enough to warrant granting a writ of certiorari

TRUE

T/F: the definition of what kind of knowledge can be protected is much broader in trade secret law (vs. patent law)

TRUE

T/F: For recreational activities (rollercoasters, baseball games, concert) exculpatory clauses work

TRUE (Waivers; fine print On the back of every ticket you buy, gravel trucks, they are everywhere )

T/F: Statutes that ban certain types of assignments exist.

TRUE - Ex: cannot assign claims against the United States government

Tennessee Valley Authority v. Hill - premise

TVA is building a dam to create a reservoir for the US government. Environmental activists are against it and discover an endangered snail in an area that would be affected by the dam. They brought the illegality of building the dam under the endangered species act to the attention of the government. Tennessee's supreme court ruled against Hill based on (1) the fact that the issuance of an injunction would result in a $53 million loss to the government, and (2) the fact that the ESA "was passed seven years after construction on the dam had commenced, and that Congress hand continued appropriations for Tellico with full awareness of the snail darter problem. Hill appealed to the US Supreme court

Suntrust bank v. Houghton Mifflin Company - outcome

TWDG is entitled to a fair-use defense. [We reverse & remand for trial.]

What is often impacted by the 'unduly burdening interstate commerce' clause? How can this be circumvented?

Taxes; a tax must be applied only to subjects that have substantial connection with the taxing jurisdiction, must be reasonably related to services provided by the taxing jurisdiction, and must ensure that no subject is taxed multiple times for the same reason

What must be included in a patent application?

The 'best mode' or the 'preferred embodiment' for implementing an invention, must contain a thorough and concise description of the invention and drawings that would allow someone to create a working version (the Enablement Requirement)

What patent laws govern most patents? What does it grant a patent holder?

The 2011 American Invents Act (AIA). 20-year, nonrewnwable, exclusive right to make, use, or sell the patented invention

Takings Clause

The 5th Amendment's "takings clause" will not allow you to block the seizure, but it will entitle you to just compensation

Who usually handles arbitration?

The American Arbitration Association (AAA)

Benay v. Warner Brothers Entertainment - outcome

The Benays must prove substantial similarity under both the "extrinsic test" and the "intrinsic test." The "extrinsic test" is an objective comparison of specific expressive elements." The "intrinsic test" is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the "total concept and feel of the works." The contested themes arise naturally from the premise of an American war vet who goes to Japan to fight the samurai, and the works develop those themes in very different ways.

Walter, a Texan, makes a sale of goods contract with Wilhelm, a citizen of Germany. Walter is the seller, and Wilhelm is the buyer. The contract does not say anything in particular about which body of contract law will be applied to resolve any future disputes over the deal. Which of the following bodies of law governs the contract?

The CISG Contracts for a sale of goods that involve buyers in different nations that have adopted the CISG are governed by the CISG unless an alternate set of laws is affirmatively selected.

Traveler's Property Casualty Co. v. Saint Gobain Technical Fabrics - outcome

The Court finds that the CISG applies in this case. A reference to a particular state's law does not constitute an opt out of the CISG; instead, the parties must expressly state that the CISG does not apply. Plaintiff's motion for summary judgement denied

Sorrell v. IMS Health Center: *Conclusion* =

The Court of Appeals reversed, holding that it burdened free speech without adequate justification Outcome = affirmed

Special issue: digital signatures: (statute of frauds):

The Electronic Signatures in Global and National Commerce Act (E-Sign) and the Uniform Commercial Transactions Act (UETA), have created rules that allow for valid digital signatures. Some things, including wills, eviction notices, and some UCC documents, still must be in paper form.

How is cost of electronic discovery combated?

The Federal Rules of Civil Procedure grant courts the discretion to allocate costs of electronic discovery in such a way as to preserve fairness. Must go through a seven factor analysis before doing an electronic discovery

Kurns v. Railroad Friction Products Corporation - arguments

The LIA pre-empted state law; even though state law has different aims the physical elements affected by the law covered the asbestos issue. LIA "occup[ied] the entire field of regulating locomotive equipment" to the exclusion of state regulation. Failure-to-warn claims: Because petitioners' failure-to-warn claims are directed at the equipment of locomotives, they fall within the pre-empted field

Beachcomber Coins v. Boskett *Brief Fact Summary* =

The Plaintiff, Beachcomber Coins, Inc. (Plaintiff), a coin dealer bought $500 in dime, minted in 1916 at the Denver mint, from the Defendant, Boskett (Defendant). After learning the coin was counterfeit, the Plaintiff sought to have the contract rescinded. Synopsis of Rule of Law. Sometimes, when dealing with mutual mistake cases, the parties can actually agree as to the thing and still both be mistaken. In this case, both parties agreed as to the coin and its value and both parties were mistaken.

In the featured case Kelo v. City of New London, a town in Connecticut took action in a distressed area with high unemployment. It sought to use eminent domain to acquire land from several landowners who did not wish to sell their land. The primary Constitutional issue in the case was...

The Takings Clause

In the featured case Kelo v. City of New London, a town in Connecticut took action in a distressed area with high unemployment. It sought to use eminent domain to acquire land from several landowners who did not wish to sell their land. The primary Constitutional issue in the case was...

The Takings clause -

Duty of good faith

The UCC creates a general obligation of good faith that is applicable to everyone. It also imposes a more specific duty on merchants to be "honest in fact and...observe reasonable commercial standards of fair dealing in the trade."

Ex: Lucier v. Town of Norfolk: and accepting offers

The UCC does not require that acceptances be a mirror image of offers. This is another circumstance in which contracts that involve a sale of goods are evaluated differently. Additional terms can become part of a UCC contract if they are not objected to, do not materially alter the deal, and are not specifically prohibited by an offer. Once an offer is made, there is a race between acceptances and terminations. Sometimes, it is very easy to tell which of the two events has won the race, because parties communicate in real time.

What is a reserve auction?

The act of putting a particular item up for auction indicates only a willingness to consider offers to purchase. A bidder's ensuing bid is treated as an offer. Because no contract is formed until the hammer falls, the bidders are free to withdraw their bids prior to that event and, more importantly, the seller is free to withdraw the item from sale if no bids are as high as the seller desires.

What is an auction without reserve?

The act of putting an article up for sale in a without reserve auction is treated as a definite offer. The seller can no longer withdraw the item (although, somewhat illogically, bidders may withdraw their bids until the hammer falls). The highest bidder has a contract for sale that he can enforce.

Adversarial system vs Inquisitorial system

The adversarial system shifts more of the cost to the private sector, whereas the inquisitorial system places more of the cost in the public sector

Soldano VS O'Daniels: *Conclusion* =

The appeals court reversed the original court order and permitted the case to go to trial, siding with the plaintiff. - it is logical extension of Restatement section 327 that imposes liability for negligent interference with a third person who the defendant knows is attempting to render necessary aid

What is a written brief?

The appellant's attorney prepares an appellant's brief which states errors that the appellant claims were made by the trial judge. These errors are usually in ruling on motions, ruling on objections to evidence, or stating the relevant law in jury instructions. The appellee's attorney responds with the appellee's brief (or reply brief), in which it is argued that under applicable law the trial judge's actions were correct or "harmless"

Oxford Healthcare plans v. Sutter - outcome

The arbitrator did what the parties had asked: He considered their contract and decided whether it reflected an agreement to permit class proceedings. That suffices to show that the arbitrator did not "exceed [his] powers."

Equal protection

The challenged law might make distinctions based upon age, street address, sexual preference, income level, or anything at all. Lots of laws make distinctions between different kinds of people and not all of them are bad.

What does protection of privileges and immunities entail? Why is it necessary? What does it specifically protect?

The citizens of each State shall be entitled to all privileges and immunities of any state they are in. Prohibits states from discriminating against residents of other states merely because of their residency. Protects only those privileges and immunities that are "fundamental," such as the right to pursue a common calling and to take, hold, and/or transfer property. Applies only to individuals and not to corporations

Kelo v. City of New London: *Outcome* =

The court held that, the usage of private property of the residents of New London, was used for public purpose and, thus, it does violate of the Takings Clause (The Supreme Court has also created controversy with the opinion in Kelo v. City of New London, which involved the categories of societal needs that count as a public use)

Beachcomber Coins v. Boskett *Outcome* =

The court then turned to the trial judge's finding that it was customary in the coin dealing business for buyers of coins to assume the risk of genuineness. After examining the testimony on this point at the trial, the court concluded that it was too weak to support the finding of "custom and usage" under New Jersey law. The court thus reversed the judgment, and ordered rescission of the contract. The Court found that the parties did agree on the object of the agreement (i.e. the questionable coin), but that mistake still occurred, not because they did not know of the others intentions, but because they did not know the true nature of the object of their agreement

What is full faith and credit?

The courts of one state must recognize court judgments and other public actions of its sister states.

What happens after a summary judgement?

The defendant is entitled to an appeal

What is key in insider trading cases?

The disclose or abstain rule is key in insider trading cases. Under this rule, if insiders or others with similar duties have information about a company that is not available to the public, then they must either disclose it or abstain from trading that company's shares until the information does become public.

What is the rational basis test?

The distinction or classification merely has to have a rational basis; there has to be a legitimate government interest (not even a strong one), and the distinction must have some rational relationship with that interest

What is the general charge to the jury? The special charge?

The general charge is to examine relevant facts and reach a decision. The special charge is a series of yes or no questions related to disputed questions in the case.

Who brings criminal cases?

The government

What is strict scrutiny?

The 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. Used in race or national origin discrimination.

Implied warranty

The implied warranty of merchantability is a part of the UCC that applies only to merchants. It creates a promise that when a merchant sells goods, they are fit for their ordinary purpose.

Riley v. Willis - outcome

The instruction at issue quite likely misled the jury by creating the impression that Riley was obligated to somehow avoid Juanita when she reached out into the road and became an "obstacle". A party is entitled to have the jury instructed upon its theory of the case when there is evidence to support the theory that meets certain criteria. Reversed and remanded

Soldano VS O'Daniels: *Issue* =

The issue in this case is whether or not a business should be liable for wrongful death when an employee denies the use of the telephone to one of its patrons. The patron was trying to call the police in a state of emergency.

True or False: A jury is, in most civil cases, considered to be a "judge of facts" while the judge is only the "judge of the law".

The judge's job in many civil proceedings is to make sure the jury applies the correct standards in deciding the case and that the attorneys follow the proper procedures during the trial. The correct answer is: True

The key in honoring contract signed by agent =

The key is in whether I had authority, or legal permission, to make the agreement on your behalf.

Who makes laws? What is an exception to this? Give an example

The legislative branch. however, congress can expressly delegate legislative powers to the other two branches. Ex. Congress gave the SEC the power to make rules specifying rules to prohibit fraudulent and deceptive practices in connection with the sale of securities

Fraserside IP, LLC v Youngtek Solutions Ltd. - results

The motion to dismiss was granted

What are the two parts of an agreement?

The offer and the acceptance

What is an option contract?

The offeree gives the offeror some consideration (usually a sum of money) in return for the offeror's promise to keep the offer open.

When does the offeror in a unilateral agreement have the right to revoke the offer?

The offeror can no longer revoke the offer once the offeree starts to perform and remains suspended until the offeree has had a reasonable time to complete the act

Fraserside IP, LLC v Youngtek Solutions Ltd. - arguments

The omnipresence of the internet makes it impossible to not have at least a passive presence in most places. There is only minimal interactivity between the websites and its Iowa visitors. In addition the actions, while intentional, were not aimed at Iowa

What are the lessee's remedies under the UCC article 2A?

The parties set their own terms and to vary Article 2 A under a lease contract. If these specifications are not made, the fallback is the behavior under 2A.

True or False: The defendant bears the burden of proving their innocence in a civil case.

The plaintiff bears the overall burden of proof in a civil case and must prove, by a preponderance of the evidence, that the defendant committed the alleged acts and that none of the potential affirmative actions the defendants claim are true. The correct answer is 'False'.

Lucier v. Town of Norfolk - outcome

The plaintiff intended to insist on the distinction between pay by the day and pay by the week, in that the latter afforded him compensation for work which would not in fact be required, when in any week a school day came upon a holiday. There was no meeting of minds, and hence no contract. Judgment affirmed.

Standard of proof in Civil law cases:

The plaintiff must prove their case by a preponderance of evidence 51% certain

What is plaintiff misconduct?

The plaintiff's own carelessness can reduce or even bar recovery. Can include failure to discover a defect, product misuse - not a defense if the misuse is foreseeable, assumption of risk - using the product while fully aware of the defect

What is subject matter jurisdiction?

The power to hear a particular kind of case

Pelman v. McDonalds - arguments

The public is well aware that hamburgers, fries and other fast-food fare have such attributes, McDonald's cannot be held liable. Many products cannot possibly be made entirely safe for all consumption. Decisions to eat at McDonald's several times a week were a choice freely made Plaintiffs argue that McDonald's products have been so altered that their unhealthy attributes are now outside the ken of the average reasonable consumer. Comes closest to overcoming the hurdle presented to plaintiffs, but is not fleshed out.

What is the cross-examination? What are some common uses of a cross examination?

The purpose of the cross-examination is to discredit or cast doubt on the witness's testimony. Common uses: to uncover withheld pertinent facts or cast doubt on the witness's credibility

True or False: The rules of evidence apply even if there is no jury.

The rules of evidence apply whether the judge or the jury is the fact finder in a given case. The correct answer is 'True'.

What is the duration of a normal patent?

The term of protection is now life of the author plus 70 years

What does reasonably definite mean?

The terms of an agreement have to be definite enough that a court can determine whether both parties lived up to their promises; it must cover all major matters

What is a deposition? What are the conditions of a deposition?

The testimony of a witness that is taken outside of court. 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

Mentally impaired persons:

The traditional view is that agreements made by those who have been adjudicated insane are not voidable, but are simply void. A person can be "insane in fact" when he or shen has no ability to understand an agreement at the time he or she enters into it, and the lack of understanding is not a result of voluntarily using alcohol or another drug that impairs thinking. Contracts formed by people who are "insane in fact" are voidable by those impaired people.

Richards v. Flowers et al - outcome

The trial court ruled that defendant's letter of January 19 did constitute an offer to sell, but it further ruled that plaintiff's telegram of January 25 was not a valid acceptance. Since there was never an agreement, hence never a contract between respondent Flowers and appellants, the judgment must be affirmed

Soldano VS O'Daniels: *Analysis/Application* =

There are several issues that come about in this case that make the owner of the bar liable. 1. The harm to the plaintiff's father was foreseeable and could have been prevented. The owner should have known that people get more violent when they are drinking alcohol. 2. Although there is no rule requiring a business owner to assist a patron, the bartender owed a duty to the plaintiff to call the police since the phone was in a public part of the inn.

True or False: A judge who fails to follow precedent set by a higher court will lose his or her position.

There is no direct punishment for failing to follow precedent set by a higher court. It is, though, likely that the judge's opinion will be reversed. The correct answer is 'False'.

When is silence a permissible response to an offer? When is it not permissible?

There is no duty on the part of the offeree to reply to an offer, and silence is not acceptance unless it was previously indicated as an acceptance or dealings in the past indicate it as an acceptance. Silence is not permissible if an offeree intends to reject and owes a duty to reject.

Texas A&M v. Bishop: *Outcome* =

There is no evidence in the record to support the jury's finding that the Wonios were employees, and hold that the Wonios were independent contractors as a matter of law. The suit against TAMU is dismissed

What is mutuality of obligation?

There must be consideration on the part of both parties to the contract. If consideration is lacking on the part of one of the parties, neither party is bound by the agreement

Courts often require that the party seeking to avoid a contractual provision must show both of two types of unconscionability:

They must show procedural unconscionability in that the clause was not adequately communicated (e.g., hidden in the fine print), or that there was a disparity of bargaining power between the parties. They must also show substantive unconscionability or that the terms of the provision are so unfair as to shock the conscience.

Privileges and Immunities

This clause in Article IV of the Constitution is used to prevent states from discriminating against citizens who live out of state in various ways. Nonresidents must be allowed to travel freely and access the courts, for example.

Utilitarian (teleological) approach.

This is a consequentialist approach that judges the ethicality of an action by a "greatest good for the greatest number" metric. The focus is put on the consequences of the action. These notions come from John Stuart Mill and Jeremy Bentham, among others.

Article 2 of the UCC

This section governs contracts that involve a sale of goods. Goods are tangible, movable, physical objects. If two people or businesses make a contract that involves selling goods, and if there is a dispute that leads to a lawsuit, then Article 2 rules will govern the case and will be used to determine what should happen.

Castillo v. Rios - outcome

Three-prong test that must be met to exempt an oral contract for the sale of real estate from the statute of frauds: if the purchaser: (1) pays the consideration, whether it be in money or services; (2) takes possession of the property; and (3) makes permanent and valuable improvements on the property with the consent of the seller or, without such improvements, other facts are shown that would make the transaction a fraud upon the purchaser if the oral contract was not enforced. Affirmed.

To accept offers, offerees must clearly....

To accept offers, offerees must clearly indicate that they definitely want to agree to the proposed deal. Under the common law, the mirror image rule requires that acceptances be unconditional and that they do not add to or change the terms of an offer.

Seigneur v National Fitness Institute - premise

To apply for membership to NFI, Seigneur had to sign a contract containing a clause that provided in emphasized print: "Important Information: I, the undersigned applicant, agree and understand that I must report any and all injuries immediately to NFI, Inc. staff. It is further agreed that all exercises shall be undertaken by me at my sole risk and that NFI, Inc. shall not be liable to me for any claims, demands, injuries, damages, actions, or courses of action whatsoever, to my person or property arising out of or connecting with the use of the services and facilities of NFI, Inc., by me, or to the premises of NFI, Inc. Further, I do expressly hereby forever release and discharge NFI, Inc. from all claims, demands, injuries, damages, actions, or causes of action, and from all acts of active or passive negligence on the part of NFI, Inc., its servants, agents or employees." Josties, defendant's employee, performed an initial evaluation of plaintiff. She asked plaintiff to use an upper torso machine and placed a 90-pound weight on it. Plaintiff felt a tearing sensation in her right shoulder. She informed Josties, who ignored the complaint and completed the evaluation. Since the incident, plaintiff has had pain and difficulty using her shoulder. NFI moved for summary judgment on grounds of the exculpatory clause quoted above. The trial court granted the motion and plaintiff appealed.

To qualify as a trade secret,

To qualify as a trade secret, a company must keep the information relatively secret by taking reasonable security measures to protect it.

To win a TM infringement case:

To win in court, a plaintiff must usually demonstrate that consumers would tend to be confused about the origin of a product. Likelihood of confusion***

Any law that is not contract or criminal is what?

Tort law

Totem Marine Tug and Barge v. Alyeska Pipeline - premise

Totem Marine Tug and Barge, Inc., entered into a contract with Alyeska Pipeline Services under which Totem was to transport large quantities of pipeline construction materials. After difficulties caused by Alyeska's incompetence, Alyeska terminated to contract while owing Totem $300,000. Alyeska promised to pay immediately until it learned that Totem needed the cash immediately or would go bankrupt. It then said it would pay in 6-8 months, forcing Totem to settle for a $97,000 payment. Totem brought this action to rescind the settlement agreement on the ground of economic duress, and to recover the balance allegedly due under the original contract. The trial court ruled as a matter of law that the circumstances under which the settlement occurred did not constitute duress, and dismissed the complaint. Totem appealed.

Likelihood of gaining TM protection for...:

Trademark protection is always denied if a potential trademark is deemed to be generic. It is often denied in the case of descriptive terms. Suggestive terms, and arbitrary or fanciful terms, are always protectable.

Traveler's Property Casualty Co. v. Saint Gobain Technical Fabrics - premise

Traveler's built a stadium using material from Saint Gobain. This material was defective and Traveler's sued and asked for a summary judgement because in the purchase order there was a provision making Gobain responsible for reimbursing for the damage caused by any defective material. Gobain argues that Traveler's purchase order states that Minnesota law applied. Under Minnesota's UCC, Traveler's Purchase Order directly conflicted with the warranty clause in Saint-Gobain's invoice and therefore all three sections are nullified

What is the Inquisitorial System of law?

Trial judge decides which issues will be addressed, although the parties provide input. Judges are usually in charge of the investigation and gathering of evidence. Rather than a single trial there are several small trials between which investigation occurs. Citizen juries are not used

What role does a trial judge play in an adversarial system? How much control does a trial judge have over proceedings?

Trial judge takes no action unless a party specifically requests it - even if a party presents evidence illegally the trial judge will not act unless the other party objects. Trial judges may sometimes ask questions of witnesses if they believe that an attorney's questioning is not eliciting certain important testimony. Can "comment on the weight of the evidence"—make comments to the jury about the strength of particular testimony or other evidence. If the court is backed up trial judges will take a greater degree of control

T/F: Most trials are settled by a jury

True

True or False: A contract calling for an action that does not violate a statute can still be found to lack a legal purpose.

True

True or False: A contract involving a loan will be considered void if the interest rate agreed upon is above state regulations.

True

True or False: A contract that takes more than one year to complete doesn't necessarily need to be in writing in order to satisfy the statute of frauds.

True

True or False: A copyright lasts for the life of the author plus 70 years.

True

True or False: A debtor's written promise to pay a debt after the statute of limitations has expired is enforceable despite lack of consideration.

True

True or False: A majority of consumers say that they had either rewarded or punished companies in the past year based on their social performance.

True

True or False: A minor can disaffirm a contract even after both parties have executed their portion of the contract.

True

True or False: A modification, under the UCC, must be in writing if it causes the entirety of the contract, as modified, to be required to be in writing under the UCC.

True

True or False: A seniority system does not violate Title VII simply because it has a discriminatory impact.

True

True or False: A statement is more likely to be considered an express warranty if it is objectively verifiable.

True

True or False: A valid intentional tort case can arise from a bad odor.

True

True or False: An example of the social weighting rationalization technique might involve an employee saying to herself: "I know I shouldn't do this, but the other employees are doing even worse stuff."

True

True or False: An unwanted sexual advance by a manager violates Title VII if it would lead a reasonable person to believe that the action - a request for a sexual favor - is required to get a promotion.

True

True or False: Article 2 of the UCC applies to the sale of goods.

True

True or False: Behavioral ethics demonstrates that people can think of themselves as good people and still often act dishonestly.

True

True or False: Being overconfident increases the likelihood of breaching business ethics.

True

True or False: Congress can regulate activity as long as, when the aggregate effect of breaking the law is considered, it would have an effect on interstate commerce.

True

True or False: Crops currently growing on property are presumed to be part of a contract for the sale of land.

True

True or False: Even if an agreement is in writing, if it lacks consideration, neither party can enforce it.

True

True or False: Following the custom of an industry or culture may be evidence that the defendant met the "reasonable person" standard, even if people of a different industry or culture may find this action reckless.

True

True or False: If Congress exercises its authority expressly to preempt state regulation, no state can adopt a law that is essentially the same as the law provided by Congress.

True

True or False: If a car salesmen sells his used lawnmower, he is not considered a merchant for the purposes of Article 2 of the UCC.

True

True or False: If a court in Texas grants a judgment against a debtor, but a court in California finds that Texas did not originally have jurisdiction, California may disregard the Full Faith and Credit Clause.

True

True or False: If an agent commingles his own money with that of the principal, and if it can no longer be separated or identified, the principal may legally take it.

True

True or False: If someone does not become aware of an injury caused via the negligence of another for more than two years after the negligent act of another, their claim is not waived under the statute of limitations in most states.

True

True or False: If there is a partially disclosed principal, that is, the third party knows that the agent is working on behalf of a principal, but is unaware of the identity of the principal, the agent and the principal are both liable to the principal.

True

True or False: In order to create an option contract under the common law, the offeree must give the offeror some form of consideration in order for the offeror's promise to keep the offer open.

True

True or False: In order to prove a claim of negligence, the plaintiff must establish: (1) that the defendant owed the plaintiff a duty of care, (2) that the defendant breached that duty of due care, (3) that the defendant's breach proximately caused the injury, and (4) that the plaintiff suffered injury.

True

True or False: In order to realize short-term goals, individuals will often not adequately take long-term legal implications into consideration.

True

True or False: Individuals are more likely to act ethically or whistle blow if it is clearly in their job description.

True

True or False: Many kinds of loans are not subject to basic state statutes limiting interest rates.

True

True or False: Many state powers are derived from police powers.

True

True or False: Many states have created common law exceptions to the common law doctrine of employment at will.

True

True or False: Milton Friedman's view is that corporations are agents of capital and that they have only a duty to earn as much money as possible for the shareholders, within the limits of the law and customary ethical practices.

True

True or False: Most contracts which a minor enters are voidable at the minor's option.

True

True or False: Negligence per se can be applied when a court finds an act negligent because an individual has violated a statute.

True

True or False: One of the main justifications for the doctrine of respondeat superior is that the superior is generally more able to pay for the damages than the subordinate.

True

True or False: Packaging and nonfunctional product design can be protected under the same principle as trademarks.

True

True or False: Pre-scripting certain actions, or deciding to take the actions in advance, tends to make an actor more likely to do a certain action.

True

True or False: Principals may be held liable for contracts signed by their appointed agents even in cases when the agents acted outside of the direct authority granted to them by the principals.

True

True or False: Protecting a third party's legitimate interests can be a defense to a claim of intentional interference with business relationships.

True

True or False: Simply having an employee sign a code of ethics can significantly reduce or eliminate unethical behavior.

True

True or False: Simply removing the encryption of a DVD can constitute copyright infringement.

True

True or False: Some individuals, such as judges and attorneys, may have absolute privilege against defamation. This means that, even if all the elements of defamation are established, they are still immune to any claims of defamation.

True

True or False: Some warranties can be waived simply because the buyer expressly refused to examine the goods.

True

True or False: The UCC does not generally apply to contracts between entities in different countries.

True

True or False: The UCC's version of the statute of frauds requires that most contracts for at least $500 be in writing.

True

True or False: The implied warranty of fitness for a particular purpose can be applied even when the item was used for something other than its usual use.

True

True or False: The implied warranty of merchantability requires only that the goods are of average or medium grade.

True

True or False: The metaphor of the ledger is a rationalization technique that employees often use to say "I worked so hard" or "I contributed so much" or "I am so underpaid" that they can justify in their own minds doing something unethical (such as padding their expense account) to even out the ledger.

True

True or False: There is a correlation between properly treating employees and fostering ethical values that will result in rule following.

True

True or False: There is a statute that prohibits registering, in bad faith, an Internet domain name similar or that are the same as someone else's protected trademarks.

True

True or False: Two international parties can agree for their contract for the sale of goods to be ruled by a body of law other than the CISG.

True

True or False: Under UCC § 2-201, the only term that must be included in a contract is the quantity.

True

True or False: Under § 402A of the UCC, a strict liability claim will not be supported if the suit arises simply because the product fails to perform its ordinary purpose.

True

True or False: Utilitarianism argues that there are no specific moral rules that can be applied to all human behavior; instead, an act is morally good if it advances the most good for the greatest number of individuals.

True

True or False: Violators of the Consumer Product Safety Act may suffer imposition of both civil and criminal fines.

True

True or False: When deciding whether a principal is liable to a third party, a principal is generally considered to be on notice if her agent is on notice.

True

T/F: Usually, when agents sign agreements on behalf of principals, the agents are not personally responsible for honoring the agreements.

True - However, the following exceptions exist: - When agents sign an agreement without any type of authority, they can be liable to a third party. - When agents act with only apparent authority, their liability is to the principal. - Agents can choose to assume liability for an agreement.

T/F: Under Agents of Capital view, corporations do not owe a moral obligation to society

True - They owe a legal obligation to follow the law, but no more.

T/F: A Void Contract is considered an oxymoron

True - bc never a contract in the first place (doesnt meet one or more of the required contract elements)

T/F: Appeals from judgments of the US courts of appeal (like appeals from state supreme courts that present federal questions) can be taken to US supreme court

True - but, in most cases, not matter of right.. rather, the parties who seek review must petition the S.C for a Writ of certiorari

A baseball team may avoid negligence liability by having an exculpatory clause on the back of game tickets relieving them of liability to fans struck by foul balls.

True.

A contract involving a loan will be considered void if the interest rate agreed upon is above state regulations.

True.

A copyright lasts for the life of the author plus 70 years.

True.

A promisor does not have to receive any benefit from a unilateral contract in order for a consideration to be present.

True.

A unilateral contract is one which is accepted by performance of a particular act.

True.

Acting ethically and responsibly can attract capital.

True.

Employees must request leave in order for the FMLA's requirement to come into effect.

True.

Parties to a contract may generally transfer their rights in that contract to a third party.

True.

The UCC's version of the statute of frauds requires that most contracts for at least $500 be in writing.

True.

Utilitarianism argues that there are no specific moral rules that can be applied to all human behavior; instead, an act is morally good if it advances the most good for the greatest number of individuals.

True.

A contract may sometimes be rescinded if only one party is mistaken as to a portion of the contract.

True. A contract may be rescinded due to a unilateral mistake if the mistake was apparent, or should have been, to the other party.

If a car salesmen sells his used lawnmower, he is not considered a merchant for the purposes of Article 2 of the UCC.

True. A party is considered a merchant only for the types of goods dealt with regularly in his or her business.

A statement is more likely to be considered an express warranty if it is objectively verifiable.

True. A warranty is more likely to be found if the statement is objectively verifiable. Statements of opinion do not give rise to warranties.

True or False: Individuals are generally not required by law to help a third party when they request aid.

True. Although there are many exceptions, a third party generally has no legal obligation to assist a third party.

If an agent commingles his own money with that of the principal, and if it can no longer be separated or identified, the principal may legally take it.

True. An agent has a duty to account for all the expenses and assets of the principal (related to the contract) and the principal may legally claim any commingled money if it cannot be separated or identified.

An incidental beneficiary has no rights under a contract and cannot enforce it.

True. An incidental beneficiary is a person whom the contracting parties did not intent to benefit by making the contract. Because of this, an incidental beneficiary has no rights under a contract and cannot enforce it.

Aristotelian virtue ethics focus on cultivating a moral character within the actor instead of doing individually moral acts.

True. Aristotelian virtues ethics concentrates more on the actor attempting to become a virtuous person in all aspects, rather than concentrating on the resolution of specific ethical issues.

Article 2 of the UCC applies to the sale of goods.

True. Article 2 governs the sale of goods. In order for something to be considered a good, it must be movable and tangible.

One of the reasons the Commerce Clause was added to the constitution was to prevent economic Balkanization among the states.

True. Before the adoption of the Constitution, economic Balkanization had plagued trade relations among the colonies under the Articles of Confederation because the Colonies had erected various barriers to free trade among themselves.

Violators of the Consumer Product Safety Act may suffer imposition of both civil and criminal fines.

True. Both civil and criminal penalties are available and often sought by the CSC

The doctrine of comity is similar to the idea embodied in the Full Faith and Credit clause of the Constitution.

True. Comity, like the Full Faith and Credit clause, generally calls for one governing body to enforce the judgment of another governing body unless there are good public policy reasons or other reasons not to.

Congress has the ability to delegate legislative powers to other branches.

True. Congress can, and has many times before, allowed other branches to create agencies with legislative-like powers. Some examples are the SEC, the U.S. Patent and Trademark Office, and the U.S. Parole Commission.

Some contracts made by very young minors are presumed to be void.

True. Contracts made by children in their "tender years" are presumed void. This is in contrast to older minors entering contracts, which are deemed voidable (by the minor) rather than void.

An exception to the Contract Clause may exist if the legislation is reasonably necessary to further a substantial state interest.

True. Even if a state law does have an effect on preexisting contracts, the legislation does not violate the contract clause if the law promotes an important state interest and interferes with contracts only to an extent that is reasonably necessary to further that state interests.

Simply having an employee sign a code of ethics can significantly reduce or eliminate unethical behavior.

True. Experiments show that bringing ethical principles to people's minds by having them read or sign an honor code significantly reduced or eliminated unethical behavior.

Milton Friedman's view is that corporations are agents of capital and that they have only a duty to earn as much money as possible for the shareholders, within the limits of the law and customary ethical practices.

True. Friedman believes that companies should not engage in correcting problems the company did not cause and that it is not appropriate for the company's managers to do so

Even if an agreement is in writing, if it lacks consideration, neither party can enforce it.

True. Generally, if an agreement lacks consideration, neither party can enforce it, even if it is in writing. Consideration is an essential element of an enforceable contract.

An advertisement can be considered an offer for purposes of a contract if it states that the quantity of an item is limited.

True. If an advertisement states the quantity of an item has been limited, states what the item is, the price, and the seller, it is likely to be considered an offer that may be accepted.

Some warranties can be waived simply because the buyer expressly refused to examine the goods.

True. If the buyer deliberately refuses to examine the goods at all, no implied warranty exists for reasonably apparent defects.

If a court in Texas grants a judgment against a debtor, but a court in California finds that Texas did not originally have jurisdiction, California may disregard the Full Faith and Credit Clause.

True. If the original court did not have jurisdiction over the original controversy, the courts of other states are not obligated to, and will not, recognize the judgment of the original court.

Congress can regulate activity as long as, when the aggregate effect of breaking the law is considered, it would have an effect on interstate commerce.

True. In Wickard v. Filburn, the Supreme Court held that Congress can regulate the growth of wheat, even if it is used for entirely personal purposes, as long as, when taken in aggregate, the effect of the activity would alter interstate commerce.

A majority of consumers say that they had either rewarded or punished companies in the past year based on their social performance.

True. In a recent poll, 51% of consumers said that they had either rewarded or punished companies in the past year based on their social performance.

Simply seeing another individual make an ethical decision in a similar situation increases the chance that others will act ethically in that same situation.

True. In experiments, if even one out of several individuals acted ethically, other individuals become much less likely to act immorally.

Individuals are more likely to commit a large wrong if they are asked to commit several smaller ones eventually leading up to the larger one.

True. Incrementalism is the slippery slope. It means that if the deeds that an individual is asked to do start out smaller and slowly increased, they are more likely to do the larger deed.

The UCC does not generally apply to contracts between entities in different countries.

True. It is the CISG that applies by default to contracts between entities in separate countries, assuming that both countries have adopted the CISG and the parties have not decided to abide by a different set of rules.

A contract may be set aside due to unequal bargaining power in certain circumstances.

True. Many courts accept the idea of economic duress, meaning that if one party knows that the other party has no reasonable alternative to their offer, it may constitute duress

Pre-scripting certain actions, or deciding to take the actions in advance, tends to make an actor more likely to do a certain action.

True. Many of those who have acted heroically have said that they had thought in advance about how they would act in a circumstance and, when the situation arose, merely acted in accordance with the court of action they had scripted.

Many kinds of loans are not subject to basic state statutes limiting interest rates.

True. Many types of loans, such as corporate loans and credit card debts have no, or higher, interest rate limits.

Courts may rewrite covenants not to compete if they are found to be unreasonable.

True. Most states have a "blue pencil" rule which allows courts that find a contract's restrictions on competition to be unreasonably broad to rewrite the covenant so that the restrictions are reasonable and then to enforce it as redrawn.

Under § 402A of the UCC, a strict liability claim will not be supported if the suit arises simply because the product fails to perform its ordinary purpose.

True. Strict liability claims under § 402A of the UCC only covers a defective product if it is "unreasonably dangerous."

Two international parties can agree for their contract for the sale of goods to be ruled by a body of law other than the CISG.

True. The CISG allows for parties to choose to allow all, part, or none of it to govern their agreements.

An agent's capacity is usually immaterial and will not prevent an agency relationship from being formed.

True. The agent's capacity is usually immaterial, unlike the capacity of the principal. This is because the contract is made on behalf of the principal. The agent is not a party to the contract and therefore does not need capacity.

The Takings Clause can be applied to allow for the government to take trade secret information from corporations.

True. The concept of property is very broad under the Takings Clause. It includes any tangible property and intangible property rights such as those that exist in a company's trade secret information.

For the doctrine of discrimination against interstate commerce to apply, the discrimination does not need to be explicit.

True. The discrimination can be implied.

Many states have created common law exceptions to the common law doctrine of employment at will.

True. The most notable of these exceptions can be grouped together under the heading of "public policy." Most commonly, courts provide remedies to individuals who are terminated because they refuse to follow instructions to violate the law.

A seniority system does not violate Title VII simply because it has a discriminatory impact.

True. The system is illegal only if it is intentionally used to discriminate.

Behavioral ethics demonstrates that people can think of themselves as good people and still often act dishonestly.

True. The two major facts demonstrated by behavioral ethics research are that people tend to simultaneously think of themselves as good people and often act dishonestly.

In order to realize short-term goals, individuals will often not adequately take long-term legal implications into consideration.

True. This fact is called a time-delay trap. Because short-term outcomes are considered to be more tangible, the long-term considerations will tend to be ignored in some circumstances.

A company can be charged with copyright infringement for simply providing the means to the actual infringer to commit the infringement.

True. This is called secondary infringement.

An unwanted sexual advance by a manager violates Title VII if it would lead a reasonable person to believe that the action - a request for a sexual favor - is required to get a promotion.

True. This is considered Quid Pro Quo harassment and is a violation of Title VII.

Packaging and nonfunctional product design can be protected under the same principle as trademarks.

True. Trademark law also protects "trade dress"- very distinctive packaging or nonfunctional product design if it serves the same purpose as a trademark. Trade names and service marks are also protected in similar fashion.

A patent protects an inventor patentee for 20-years by giving them exclusive rights to make, use, or sell the patented information.

True. Under both former patent acts and the AIA, an inventor patentee is protected for 20 years from the date of filing by giving them exclusive rights to make, use, or sell the patented information.

There is a statute that prohibits registering, in bad faith, an Internet domain name similar or that are the same as someone else's protected trademarks.

True. Under the Anti-cybersquatting Consumer Protection Act, it is illegal to register an Internet domain name (1) that is the same as or confusingly similar to someone else's protected trademark, (2) where there is a bad faith intent to commercially exploit the trademark, and (3) the likely effect is to either cause confusions, or, if the mark is famous, to cause dilution.

Simply removing the encryption of a DVD can constitute copyright infringement.

True. Under the DMCA, this constitutes copyright infringement.

In order to create an option contract under the common law, the offeree must give the offeror some form of consideration in order for the offeror's promise to keep the offer open.

True. Under the common law, in order to create an option contract, the offeree must give the offeror some form of consideration in order for the offeror's promise to keep the offer open.

The implied warranty of merchantability requires only that the goods are of average or medium grade.

True. Under the implied warranty of merchantability, there is no guarantee that goods will be of the highest quality available; they are required to be only of average or medium grade, in addition to being adequately packaged and labeled.

A modification, under the UCC, must be in writing if it causes the entirety of the contract, as modified, to be required to be in writing under the UCC.

True. Under § 2-209(2), a modification must be in writing if the whole contract, as modified, is required to be in writing under the UCC statute of frauds.

Crops currently growing on property are presumed to be part of a contract for the sale of land.

True. Unless otherwise stated, the sale of land consists of the earth's surface, vegetation, buildings, and other structure permanently attached to the soil.

If there is a partially disclosed principal, that is, the third party knows that the agent is working on behalf of a principal, but is unaware of the identity of the principal, the agent and the principal are both liable to the principal.

True. Unless the agent and the third party agree otherwise, in the case of a partially undisclosed principal, both the agent and the principal are potentially liable to the third party.

The metaphor of the ledger is a rationalization technique that employees often use to say "I worked so hard" or "I contributed so much" or "I am so underpaid" that they can justify in their own minds doing something unethical (such as padding their expense account) to even out the ledger.

True. With metaphor of the ledger, the actors rationalize that they are entitled to indulge in deviant behaviors because of their accrued credits in their job.

What two conditions must be met to prove implied preemption?

Two conditions mut be met to prove implied preemption: First it must be shown that the federal regulation is relatively comprehensive; Congress attempted to impose a fairly complete regulatory structure on this type of activity. Second, it must be shown that there is a very strong need for a uniform national regulatory policy in this area, so that individual state laws of this type are likely to interfere with the objectives of the federal regulatory effort

Most federal cases originate here

US District Court

UT v. KST Electric - arguments and outcome

UT's marke is famous only in a niche market an dis therefore not protectable under the TDRA. Dismissed.

Name 3 special goods classifications.

Unborn animals, money - collectible coins etc, and things specially manufactured for a buyer (vs a service)

True or False: Jordan files a class action suit against MAC. The total value of the class action suit will likely be greater than $5 million, but Jordan stipulates that the class will not seek damages in excess of $5 million. MAC cannot remove the case to federal court.

Under CAFA, simply stipulating that a class will not have damages exceeding $5 million does not preclude the defendant from removing the case to federal court. This is because a named plaintiff cannot limit the damages of all the other members of the class, as stated in Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345. The correct answer is: False

How detailed must a claim be to survive a motion to dismiss?

Under Twombly and Iqbal, all that is required for a judge to dismiss for failure to state a claim is that a complaint would allow for a "savvy trial judge" to find the alleged facts improbable and that the plaintiff's chance of ultimately winning is highly unlikely.

When is a counteroffer seen as an acceptance?

Under the UCC a sale of goods contract which has been amended is an acceptance; this is because it's seen as a contract that is not yet fully negotiated.

Contract formation

Under the firm offer rule, if a merchant signs a written promise to keep an offer open for a set amount of time, it must honor the promise even if it has received no payment for making the promise The UCC has a series of gap-filler provisions, so that even if parties forget to include some specific things in a contract (such as when deliveries will be made or how payment will be made), they can be determined by a court

True or False: John was dissatisfied with the work environment he had to endure while working at B12. John had to work in a building where the A/C was never put below 75 degrees. Under the Fair Labor Standards Act (FLSA), a piece of federal legislation outlining certain practices which employers engaged in interstate commerce can and cannot do, an employee has the ability to bring a lawsuit against a company if the company fails to meet certain standards. These standards include a mandatory minimum wage, overtime regulations, and child labor regulations. John would be able to sue under the FLSA.

Under the rule of interpretation known as expressio unius est exclusio alterius, it is assumed that when there is a list of certain items, the exclusion of others is presumed to be intentional. Therefore, because the FLSA allows for a suit arising from violation of minimum wage laws, overtime regulations, or child labor regulations, it is implied that other issues, such as uncomfortable working conditions, are excluded from being enforced under the act. The correct answer is 'False'.

Pure comparative (negligence):

Unfair to defendants. If plaintiff is more at fault than defendant, can recover. If plaintiff is at fault for 80% of own injuries, the defendant still has to pay 20% to plaintiff.

What are some exceptions to consideration in preexisting obligation cases?

Unforeseen difficulties, mutual rescission, and modification contracts

What protects Trade Secrets?

Uniform Trade Secrets Act or State law

What law protects trade secrets?

Uniform Trade Secrets Act or state law.

Beachcomber Coins v. Boskett deals with what?

Unilateral mistake (fraud) ** These contracts are voidable. Rule of Recission for Mutual Mistake of fact: Both parties operate under a mistake of fact and the fact is central or material to the making of the contract.

Uniltateral mistakes

Unilateral mistakes in which only one party makes an error lead to rescission less frequently, particularly when they do not involve obvious mathematical mistakes.

Tradedress:

Unique product packaging Product features and attributes

Can corporations be held liable for white collar crime?

Used to be that they couldn't because it seemed impossible to establish mens rea or punish through incarceration, but now it is seen that employees can provide mens rea and punishment can be furnished by other means.

Does product liability favor the consumer or the seller?

Used to be the consumer but since this caused a competitive disadvantage in the international market, it now leans towards the seller.

Minors backing out of contracts:

Usually minors have to be given a full refund If they showed a fake ID or misrepresented their age, the seller just has to refund the profit they made on the product

Valid, void, and voidable contracts

Valid: have no problems with any of the requirements Void: has a major flaw in one or more of the key areas and is completely unenforceable. Ex: agreement to sell cocaine Voidable contracts: sometimes, a person in a legally recognized weakened position is given an option to enforce or cancel obligations. Ex: children

True of False: As long as the court has proper personal jurisdiction and subject matter jurisdiction, the case can properly be tried there.

Venue must be properly laid and the court cannot violate the doctrine of forum non conveniens, or any equivalent doctrine or statute, in order for the case to properly tried in a given forum. The correct answer is: False

Soldano v. O'Daniels - premise

Villanueva pulled a gun and threatened the life of Soldano at Happy Jack's Saloon. A patron of Happy Jack's ran across the street to the Circle Inn and informed the bartender of the threat, asking the bartender either to call the police or allow him to use the phone to call the police. The bartender refused both requests. Soon thereafter, Villanueva shot Soldano to death. The plaintiff in this wrongful death action is Soldano's child. The defendants are the bartender and his employer. The trial judge dismissed the claim in response to the defendants' motion for summary judgment. Plaintiff appealed.

Contracts in which fraud is present fall within this category -

Voidable contract - because the law permits the one who has been defrauded to set aside the contract.

Lawyers on both sides have chance to ask questions of prospective jurors during ___________

Voir Dire

Jim wishes to expand his net worth by being more aggressive in the stock market. To this end, he contacts Walt, a well known stock broker, and sets up an account with a salary in order to have Walt make stock trades for him. Which of the following actions would be considered a breach of fiduciary duty by Walt?

Walt invested Jim's money, and made a large portion of money, in Sony. However, Jim expressly told Walt not to invest in Sony.

Webster v. Blue Ship Tea Room - premise

Webster chokes on a fish bone in her fish chowder and has to have two escophagoscopies. She sues for breach of the implied warranty of merchantability and wins. Defendant appeals.

Trade name vs. Service Mark

When a company's name is protected by this body of law, it is called a trade name. When the service provided by a company is protected, it is called a service mark.

When are minors liable for executed contracts? Why?

When a contract deals with necessaries the minor is liable to the other party for the reasonable value of the goods actually used. This is to encourage adults to deal with minors who need to buy food, clothing, shelter, and other necessaries

what is a creditor to a contract? Give an example

When a contract is made between two parties for the express benefit of a third person, the third person is the creditor if he or she had earlier furnished consideration to one of the contracting parties. Ex. A owes X $500. A later sells a piano to B, on the understanding that B, in return, is to pay off A's indebtedness to X. In this situation, X is a creditor beneficiary of the contract between A and B

What is a composition agreement?

When a debtor agrees to pay back a portion of what they owe and a creditor agrees to accept it as full payment. Cannot collect on this later.

Intentional torts

When a defendant has deliberately caused harm, a plaintiff can bring an intentional tort action.

Intentional Torts

When a defendant has deliberately caused harm, a plaintiff can bring an intentional tort action. Intentional torts are defined very specifically, and each type of intentional tort case requires plaintiffs to prove different elements.

When are promises on gifts enforceable?

When a formal promise is made to a charitable institution it is enforceable

What is a consumer lease?

When a lessor who leases regularly leases to someone for household or family purposes where total payment does not exceed $25,000

Duress:

When a party to a contract compels the other to accept an offer by committing a wrongful act or making a wrongful threat. Threats of criminal lawsuits may constitute duress. Occasionally, even threats of economic ruin amount to duress, as in Totem Marine Tug & Barge v. Alyeska Pipeline.

Fraud and innocent misrepresentation:

When a party to contract commits fraud, the other party can disaffirm (and perhaps sue for damages, including punitive damages under the tort of fraud). If plaintiffs can prove all elements of fraud except that defendants believed their false statements were true, then they have committed innocent misrepresentation. Plaintiffs in these cases can usually rescind contracts but not seek damages.

Liability when a seller breaches the warranty of fitness for a particular purpose -

When a seller knows or has reason to know that a buyer needs a product for some specific use, and that the buyer will rely on the seller's recommendation or expertise, this type of warranty is created. The issue is illustrated in Dempsey v. Rosenthal.

Special issue: the parole evidence rule: (statute of frauds):

When a written contract exists and shows that the parties intended the document to be the final expression of the agreement, no one can introduce evidence from outside the written contract, such as parol evidence, in court in an effort to change or add to unambiguous parts of the contract.

True or False: When an equitable claim and a legal claim are tried together, both claims are determined purely by the judge.

When an equitable and a legal claim are tried together, the jury makes the determination regarding the legal claim. The correct answer is: False

What is the Parol Evidence Rule?

When any contract has been reduced to writing and shows that the parties intended the written document to be the "final word" as to the terms the parties agreed on, neither party can introduce "parol" (outside) evidence in court for the purpose of adding to or changing the terms of that contract.

Mistakes:

When both sides make an error about the "existence, character, or identity" of the contract's subject matter, a voidable contract may be formed.

When must a contract be in writing to be enforceable?

When it is for $500 or more, the seller has already begun to produce specially made goods, payment has been made and accepted/goods have been received and accepted, if the contract is between merchants and there has been a confirmatory memorandum sent and the receiving party did not object to its terms in writing within 10 days, or the party against whom the contract is to be enforced admitted in court proceedings that an oral agreement existed

When does the Federal government have subject matter jurisdiction over civil cases?

When the attorney thinks its in the client's best interest, when it is a Federal question case, or when it is a diversity of citizenship case

When does full faith and credit not apply?

When the court that entered the judgment originally did not have jurisdiction, or the judgment violates the public policy of the state where enforcement is sought

What can the takings clause be used for in addition to seizure of goods? How is this justified?

When the government engages in some physical act that greatly diminishes the utility and value of someone's property. Some diminishment, like zoning, is seen as a burden you must bear for the good of the many.

When does an implied warranty of fitness for a particular purpose exist?

When the seller had "reason to know" of the particular purpose for which the goods were purchased (such knowledge does not have to be proven), and the seller also had reason to know that the buyer was relying on the seller's skill or judgment to furnish suitable goods at the time of contracting

What is substantive unconscionability?

When the terms of the contract itself are oppressive

is AIA first to file or first to invent?

When there is a contest between a first filer and another inventor who claims to have invented first, the first filer will win, period.

Proximate causation

When we hold a defendant legally liable for harm suffered by a plaintiff, we are saying that he caused harm in a way that should have been reasonably foreseeable.

What is a donee? Give an example

Where a contract is made for the benefit of a third person who has not given consideration to either contracting party. Ex. P, an attorney, agrees to perform certain legal services for Q, with the understanding that Q will pay the $200 legal fee to R, P's son-in-law. Here P has made a gift of $200 to R, and R—the donee beneficiary of the contract—can enforce it against Q if Q refuses to pay him voluntarily. Ex. life insurance policies

What is unliquidated debt?

Where a genuine dispute exists between the debtor and creditor as to the existence or amount of the indebtedness. Settlement is legally enforceable in this case.

Red Rose Transit v. North American Bus Industries - Outcome

While tort recovery is barred for damage a product causes itself, such recovery is available for damage the failing product causes to other property

Hamer v. Sidway - premise

William E. Story, Sr., promised to pay his nephew, William E. Story, II, $5,000 if he would refrain from drinking, using tobacco, swearing, and playing cards or billiards for money until he became twenty-one years of age. The uncle died, without having made payment The trial court ruled that the uncle's promise to pay the $5,000 was not supported by consideration on the part of the nephew (the promisee) and entered judgment for the defendant. The plaintiff appealed.

Riley v. Willis - premise

Willis walking close to the road with her dog. Dog darts into the road as Riley, pulls even with Willis, and Willis leans into the road. Willis is struck by Riley's car and files a negligence suit. Riley raises a defense of contributory negligence. On request from Willis's lawyer, judge's instructions to the jury state the special duty of a motorist to avoid "obstructions" in the roadway by moving to the left. Judge refuses to state an instruction, requested by Riley's attorney, concerning a county ordinance that required people to keep their dogs on a leash. Jury rules that Riley was responsible for 60% of negligence and must pay accordingly. Riley appeals on the grounds that (1) The trial judge should not have included the jury instruction about a motorist's special duty to avoid obstructions. (2) The trial judge should have included the jury instruction about the county ordinance requiring an owner to keep his or her dog on a leash

Challenge for cause

With a challenge for cause, an attorney tries to convince a judge that a prospective juror will likely not be fair and impartial.

Peremptory challenges:

With peremptory challenges, lawyers can send a limited number of prospective jurors home without stating any reason in particular.

What happens if the defendant never receives his service of summons and a summary judgement is granted?

Within a certain period of time, the defendant may ask the court to set aside the default judgment and give the defendant a chance to defend against the complaint.

UCC rules (statute of frauds):

Writings need only be sufficient to "indicate that a contract for sale has been made between the parties." Require a quantity term.

Bill files a Federal lawsuit based on his 1st Amendment right to free speech in a district court. When he loses the case, he appeals to a U.S. Court of Appeals, and he is again unsuccessful. He now wants the U.S. Supreme Court to review his case. Will he be able to do so?

Yes, but only if the Supreme Court grants a writ of certiorari. The Supreme Court generally gets to pick and choose the cases it will review, and this case will require a writ of cert

Is reverse engineering a legal way to gain knowledge?

Yes, but using it is still patent infringement if it is patented

Are international arbitration agreements legally binding?

Yes; by the 1958 United Nations Convention on the Enforcement of Arbitral Awards

Law vs. Ethics

You can be ethical and still break the law and vice versa. Law is a subset of ethics They don't equal each other

What is a shrinkwrap/clickwrap license?

You have to give the buyer an opportunity to read and agree to terms before agreeing to purchase. This applies to shrinkwrapped product (you can return them after opening if you don't agree to the terms)

Duty of care:

You owe everyone you meet, and everyone with whom you interact, some level of legal responsibility. The standard legal duty is to act as a reasonable person Special duties sometimes apply, such as when visitors come to your property

US v. Anderson - premise

Zomax's CFO distributed a report indicating that third-quarter sales would be approximately $60 million, significantly short of the $73 million in sales earlier projected by the board of directors. Despite this projection, the defendant and other senior officers publicly communicated optimism about the third quarter and projected sales of just over $75 million. On August 3, 2000, Zomax's controller prepared a sales report indicating that July sales had been only $60 million. Starting the next day and continuing until September 20, 2000, the defendant liquidated every share of Zomax stock that he and his wife owned. Selling over 800,000 for nearly $14 million. The day after the final sale, defendant gave approval to issue a third-quarter press release in advance of the ordinary third-quarter press release, announcing that Zomax would not meet its third-quarter sales and earnings projections. Two minutes after receiving the release, ASDAQ suspended trading on Zomax stock When trading resumed thirty-seven minutes later, the price of Zomax stock dropped from $17.38 to $ 9.56 Zomax had a written policy regarding insider trading which applied to officers, directors and other key management personnel. Zomax had a policy requiring all trading activity by officers and directors be cleared in advance by the CFO and Zomax's outside attorney. The defendant knew of the policy and never advised Zomax's CFO or its outside attorney of the sales or obtained clearance from either of them.

What is the classic example of a promise by one person to pay the debts of another?

a "guaranty contract" in which Dad promises the Vintage that he will pay Lindsey's debt to the Vintage if Lindsey does not. Because Dad received no benefit in this transaction, the law is suspicious and demands that the Vintage provide written evidence of Dad's promise.

The United Nations' Convention on Contracts for the International Sale of Goods (CISG)

a body of contract law that has been adopted by most nations including the United States. CISG rules automatically apply to contracts for a sale of goods between buyers and sellers from different nations, unless the parties specifically opt for some other body of contract law. Travelers v. Saint-Gobain Technical Fabrics (example)

What is a diversity of citizenship case? What are the limitations on such a case?

a case in which the plaintiff and defendant are citizens of different states or when one party is a citizen of a state in the United States and the other is a citizen of another nation. If a case has concurrent jurisdiction, the amount in controversy is greater than $75,000. If the case has not been tried in a state court it can be brought to any federal court. Can only occur if there is no common state citizenship on opposite sides of the case.

Kelo v. City of New London:

a city with a revitalization plan squared off against property owners who did not wish to sell their property. The key constitutional provision was the Takings Clause in the *Fifth Amendment*. The Supreme Court decided the city *could not* use eminent domain and take the property from the landowners

If we aren't told that it is criminal it must be ....

a civil case

What is a counterclaim?

a claim against the plaintiff that will allow him/her to collect money or damages if proved true

The Fifth Amendment =

a clause that ensures that if any govt. Unit takes private property for public use, the unit is required to compensate the owner. The power to acquire is the 'power of eminent domain

What is an Executory contract?

a contract in the process of being executed

What is an illusory contract?

a contract in which consideration is lacking on the part of one of the parties

What is the "battle of the forms" provision?

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.

What is a modification contract?

a contract that alters the terms of an existing contract—requires some new consideration in order to be enforceable. This is to prevent coerced modification contracts

Voidable Contract =

a contract which may be avoided—that is, may be legally set aside—by one of the parties, even though the contract consists of a definite agreement, is supported by consideration, and has a lawful purpose

Agents of Society View

a corporation is the result of a contract between those forming the corporation and the society that permits its creation. Thus, the corporation has a social contract to contribute positively to society Thus, 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

What is an injunction?

a court decree ordering the defendant to do or not do a particular thing

Injunction

a court decree ordering the defendant to do or not to do some particular thing

What is a felony? Examples? What is a misdemeanor?

a crime for which the max penalty is imprisonment for more than a year or death (murder, arson, rape). A misdemeanor is any crime carrying a lesser penalty.

What does Magnuson-Moss prevent for an implied warranty? When does this apply?

a disclaimer (1) when an express written warranty is given, (2) when a service contract is made with the consumer within 90 days after the sale.

What is a trademark?

a distinctive word, phrase, symbol, or design that identifies the origin of a good

What is an important rule regarding what kind of statutory laws are allowed? When can this rule be broken?

a law cannot affect only part of the citizenry or combine more than one subject matter. Must be broken when trying to prevent omnibus bills (those that bring together entirely unrelated, or incongruous, matters)

What is a public law?

a law directly concerning a government-individual or government-business relationship. A wrong against the state.

What must a defendent prove under the FTDA?

a likelihood of blurring or tarnishment

What determines if a trademark is famous?

a mark is famous only if it is very widely known by the general consuming public, and not just widely known within a local geographic area or a niche market

The Ricci v. Destefano case

a notable recent Supreme Court opinion that shows the dense thicket of issues surrounding disparate treatment and disparate impact cases that organizations must sometimes navigate.

often, proof of disparate treatment is made when a plaintiff demonstrates what?

a prima facie case by proving facts from which intentional discrimination can be inferred

What is negotiated settlement?

a settlement outside of court. Usually occurs after many expenses are incurred from pretrial discovery.

The most common type (of disparate treatment)

a sexual harassment case

What is hearsay?

a statement made by some person who is not testifying in court for the purpose of proving the truth of that statement is hearsay

What are damages?

a sum of money roughly equivalent to the loss suffered as a result of the wrong committed

When does the federal court have subject matter jurisdiction over a criminal case? Where does much of this jurisdiction come from? Examples?

a violation of a federal criminal statute. Congress has power to pass criminal laws only if there is some basis in the Constitution authorizing it to do so. Many are based on interstate commerce provisions. Ex. Smuggling drugs into the US, hijacking an airplane, commit securities fraud, etc.

Why does the Parol Evidence rule exist?

a written contract is more reliable than oral testimony so it helps prevent fraud, it encourages the parties to put their important agreements in writing, and it emphasizes that final expressions of intent should prevail over earlier tentative expressions of intent

What is a limited warranty?

a written warranty that does not meet the minimum requirements

When does an acceptance go into effect under the UCC?

acceptance is deemed effective when it is sent if it is received within the time that an acceptance using a reasonable medium would normally arrive

When does an acceptance take effect?

according to the "reasonable medium rule" an acceptance is in effect as soon as it is sent if the medium chosen is reasonable and as soon as it is received if it is not reasonable

Civil actions are actions in which...

actions in which the parties bringing the suits (the Plaintiffs) are seeking to enforce private obligations or duties against the other parties (the defendants)

Which states adopted the UCC?

adopted in whole (with little variation) in all states except Louisiana (which has adopted parts)

Sorrell v. IMS Health Center - outcome

affirmed

Seigneur v National Fitness Institute - outcome

affirmed.

In consideration to minors, the primary purpose of the common-law rule is to ....

afford protection to minors by discouraging others from contracting with them

Misdemeanors -

all crimes carrying lesser penalties

Civil laws:

all those laws that spell out the rights and duties existing among individuals, business firms, and sometimes govt. agencies

Punitive damages

allow a jury to go beyond merely compensating a plaintiff for his injuries and punish defendants who have behaved particularly badly. If the jury is outraged by an intentional tort, they are allowed a significant discretion in awarding these extra damages

What is Rule 4(k)(2) of the Federal Rules of Civil Procedure? When does it apply?

allows a federal court to exercise personal jurisdiction over a foreign defendant that has enough contacts with the U.S. as a whole to establish personal jurisdiction, but does not have sufficient contacts with any single state for courts in that state to exercise jurisdiction. Applies only if the claim is based on a federal question.

Depositions

allows attorneys to question witnesses under oath before a trial begins

Interrogatories

allows lawyers to demand answers to written questions

What is a wrongful death action?

allows relatives of a deceased person to sue those whose wrongful acts may have caused a death. The wrongful act must be a tort for which the deceased ma have filed suit if they had not died.

Criminal Law

allows the government to impose fines, imprisonment, and occasionally, the death penalty

The Family and Medical Leave Act

allows workers with at least one year of service at a company, which has at least 50 employees, to demand unpaid time off to handle certain medical situations. Births, adoptions, and serious illnesses that employees or members of their immediate families suffer from qualify workers for FMLA leave. Special rules apply to serious injuries and illnesses associated with military service.

What is commercial arbitration? When is it legally binding?

almost all other forms of arbitration. Federal Arbitration Act (FAA) makes written commercial arbitration agreements legally enforceable if the transaction affects interstate commerce. State arbitration statutes make most commercial arbitration legally binding.

Warranties of title

also exist automatically for most sales of goods. These warranties guarantee that items sold have not been stolen and are not encumbered by security interests.

Ashcroft v. Iqbal - outcome

alters common law practices for motion to dismiss

When a case is reversed...

an appellate court will remand it or send the case back down to the original trial court with instructions on how to fix the error. The trial court may then do something fairly small, like recalculate the amount of money plaintiffs will be awarded, or something large, like conduct an entirely new trial

What is an acceptance?

an expression on the part of the offeree by which he or she indicates an intent to be bound by the terms of the offer

What is the "first sale" doctrine?

an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner

Writ of certiorari

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

What is a Remedy?

an order to the defendant requiring that they either pay money or to do a particular act

What is the Specialized US Court?

analogous to the state courts of limited jurisdiction; specialized subject matter jurisdiction (ex. U.S. Tax Court, which hears only federal tax cases, and the U.S. Court of Federal Claims which hears only claims against the U.S. government)

What is usage of trade?

any practice or so normal within a type of dealing that is should be expected that it will be observed within the transaction

How are rights assigned?

any words or conduct indicating an intention on the part of the assignor to transfer his or her contractual rights are normally sufficient

The employment at will doctrine

applies to the majority of American workers. Under it, companies can fire workers at any time for any reason, unless the company would violate a specific law in doing so. A company cannot, for example, fire a worker because of his race because such an action would violate the Civil Rights Act.

The Age Discrimination in Employment Act

applies to workers age 40 and older. It has several similarities to the Civil Rights Act and is featured in the case Olsen v. Northern FS, Inc.

What is the role of the judge in common law decisions?

apply philosophy, history, custom, and social welfare. Form precedent but allow change as societal norms change.

Express Warranties

are created by a seller's words or actions. When sellers make a factual statement about a product, describe it, or provide a buyer with a sample, they generally create an express warranty. Even post-sale promises can create warranties

Mediators -

are like a counselor, they don't have legal power. try to get u to work through a settlement, instead of going to court. can't make people do anything

In strict liability cases, plaintiffs ....

are not required to show a defendant's fault in a conventional sense. Instead, defendants are held to be automatically liable, even if they were "as careful as they could be.

Warranties

are promises that goods will meet various standards, and the UCC describes many different types.

Literal infringement cases

are straightforward. If a defendant makes a product that copies all claims in a plaintiff's patent, then a clear violation has occurred.

What is a compulsory counterclaim?

arises from the same set of circumstances that led to the plaintiff's claim. Must be brought in the same case as the claim; it cannot be brought as a second suit after a case is tried

what is 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."

Is software patentable?

as long as the patent attorney is very careful to draft the "claims" (discussed later) in the patent application to include language showing that physical parts of a computer are an essential part of the invention

When rights are transferred, they are __________ ; when duties are transferred, they are ____________.

assigned delegated

Since the CPSA's fines are ineffectual, how is it used?

attempts to punish companies through bad publicity.

Comparative negligence

award is reduced by your own fault (40%), still recover something if in a shared fault case. lose a little bit if at fault a little

What is bailment? Give an example?

bailment occurs when the owner of an article of personal property temporarily relinquishes the possession and control of it to another (renting a car, checking a coat, storing goods)

Soldano v. Daniels - outcome

bartender owed a duty to the plaintiff to allow a call to the police or to make the call himself. Summary judgement granted. Nonliability by inaction is morally questionable.

What kind of damages are collectible in a contract case?

basis-of-the-bargain damages (the value of the goods warranted less the value received), consequential damages (personal and property damages proximately caused by the warranty breach, along with any indirect economic loss foreseeable by the defendant). Seller may put a limit on damages in contract. Punitive damages are not collectible.

Why are intentional tort cases very unsettling for defendants?

because juries have the option to award potentially substantial punitive damages on top of ordinary compensatory damages

How can the government ensure a conviction in a fraud case?

beyond a reasonable doubt, intent, using nonpublic info when they had a duty not to

Most contracts are __________

bilateral

Trademark examples:

brand names, logos, colors, slogans, sounds

One of the most common forms of misappropriation is the ___________

breach of a duty of confidentiality. - An obligation to keep information confidential, to not disclose it to others, and to not use it for any purpose than to benefit the owner can be express or implied.

Copyrights

broadly speaking, cover creative works or the expression of ideas. If you write a novel, record a song, draft a blueprint for a new building, take a photograph, or paint a painting, your creation is covered by the Copyright Act

Soldano v. O'Daniels - arguments

business argues that one who has not created peril ordinarily does not have a duty to take affirmative action to assist an imperiled person What factors determine if a party has a duty to help? Was harm foreseeable? Was there a close connection between the employee's conduct and the injury? Did the employee display a disregard for human life? What would the burden on the employee have been?

How is one proven guilty in a civil case?

by a preponderance of evidence presented by the plaintiff.

What are the ways an offer can be terminated?

by act of the parties, lapse of time, or by operation of law

What is a unilateral contract? Give an example

can be accepted only by the performance of a particular act. Ex. The promise by a seller of property to pay a real estate agent a commission when the agent finds a buyer for it. When the broker produces a buyer who is ready, willing, and able to purchase the property, he or she has earned the promised commission. A mere promise by an offeree that he or she will bring in the item later does not result in the formation of a contract

Are penalties leviedby the CPSA civil or criminal?

can be both!

What is concurrent jurisdiction?

can be heard by either federal or state court

Public policy concerns also often lead to courts..

cancelling exculpatory clauses. With these clauses, people and businesses seek to avoid liability for negligence or other acts by claiming, "We are not responsible for X," in a contract, on a sign, or sometimes on the back of a ticket stub. - Amusement parks, baseball games, etc. - Seigneur v. National Fitness Institute

A case will go to federal court if for example,

cases between people from diff states above $75,000 or more

What is court-annexed arbitration?

cases involving money damage claims below certain amounts are required to undergo arbitration. The parties must participate in the arbitration, but the award is not legally binding if either party formally demands a regular trial within a short time after the award.

How are states changing liability to lean towards sellers?

ceilings on damage awards in product liability suits (this may be unconstitutional because it prevents people from getting what they're owed), caps on punitive damage rewards (rarely granted anyways), elimination of joint and several liability, requiring plaintiffs to show the economic and technological feasibility of alternative designs in design defect cases, time statutes providing a time period after which the manufacturer is not liable for injuries caused by a product, and "state of the art" defenses that prevent defendants' engineering and other decisions from being judged by 20-20 hindsight

The Rule-based (deontological) approach

championed by Kant, who held the idea that people should never treat their fellow men as objects by which to attain goals. Examples might include the law and social norms (and perhaps the Ten Commandments).

How do large corporations handle payment in full checks?

checks that are "in full satisfaction" must be sent to a designated office since they cannot examine hundreds of checks every day

Contract law, tort law, sales law fall within the _______ category

civil

What is a pre-dispute agreement?

clause in a commercial contract in which the parties agree that if there is any future dispute arising from the transaction, they will submit that dispute to legally binding arbitration

The subjects of contracts, torts, and agency are dominated by _________ ______ rules

common law

The subjects of torts are dominated by ______ law rules & _____ law

common law & civil law

If people sue over a contract that involves non-goods (like an employment contract, in which people are selling their labor, or a contract to sell real estate), then ______ ____________ would be relevant and Article 2 of the UCC would not be.

common law principles

If people sue over a contract that involves non-goods (like an employment contract, in which people are selling their labor, or a contract to sell real estate), then ______________________ would be relevant and Article 2 of the UCC would not be.

common law principles

Arbitrary/Fanciful TM -

common words in meaningless context (Apple, inc.)

Who owes a duty to disclose or abstain?

company insiders, temporary insiders (like contractors), missappropriators (noninsiders who know confidential info), and any tippee (a tippee cannot be liable for insider trading unless he or she knows that the tipper breached a duty in passing along the information)

Because of the harshness of the contributory negligence system, almost all states have replaced it with a system of "_____________ ___________________"

comparative negligence (or comparative fault) - A substantial majority of states have adopted "modified" comparative negligence, which disallows the plaintiff from recovering any damages if her percentage contribution to her harm passes a certain point

Statutory law elements:

comprised of state and federal constitutions, municipal ordinances, even treaties written law - once adopted, its exact wording is set forth in the final text passed

Criminal Law:

comprises those statutes by which a state or the fed govt. prohibits specified kinds of conduct and which additionally provide for the imposition of fines or imprisonment on persons convicted of violating them criminal suits brought by the govt. whose law has allegedly been violated

What are the three elements that must be present to make a contract legally enforceable?

consideration, capacity, and legality

What are the ways a court can enforce a judgement?

contempt of court ruling, writ of execution, writ of garnishment

What types of case fall under civil law?

contract, tort, and sales law

What types of cases are generally ruled by common law?

contracts, torts, and agency

What are the three types of secondary infringement liability?

contributory, vicarious, and inducement infringement

What types of cases are primarily decided by statutory law?

corporation, criminal, and tax law

What is a form of rejection? Why is this important?

counteroffer; if the price stated in an offer is $500, and the offeree replies, "I'll pay $400," the original offer is ended forever

Where is civil law used?

countries that did not base their law on either English common law or Islamic law.

How is venue decided in a case? Who chooses venue?

county in which the conflict occurred or where the defendant resides. Plaintiff can choose if there are two being considered. Fairness and efficiency are the two main factors in deciding

What are the three components that parties are assumed to have considered when they formed their agreement?

course of performance, course of dealing, and usage of trade

What is the "blue pencil" rule?

courts finding that a contract's restrictions on competition serve an employer's legitimate interests but are unreasonably broad (either in terms of geography or time), will simply rewrite the covenant so that the restrictions are reasonable in scope and then will enforce them to that extent

The Consumer Product Safety Act

created the Consumer Product Safety Commission. The CPSC conducts safety research and creates safety regulations that cover thousands of products.

The Magnuson-Moss Warranty Act

creates special warranty obligations that apply to consumer transactions. When companies choose to create express warranties on any but the least expensive consumer goods, they must describe their warranty as full or limited, express the warranty in clear language and in a single document, and cannot disclaim implied warranties.

What are the three types of beneficiaries to a contract?

creditor, donee, and incidental

Felony -

crime the legislature has provided a max penalty of either imprisonment for more than one year or death, (murder, arson, rape)

In Civil law cases, the usual remedy the plaintiff is seeking is ...

damages - a sum of money roughly equivalent to the loss that he or she has suffered as a result of the defendant's wrong

What is the plaintiff usually seeking in a civil case?

damages and/or injunction

What is Article 2 of the UCC?

deals with the sale of goods, and rules for contracts selling goods

What are reasons for termination by operation of law?

death or insanity of either party, destruction of the subject matter of the contract, intervening illegality.

What is a Motion to dismiss? What are the next steps if it is granted?

defendant asserts that the plaintiff has not even stated a "cause of action"—that is, that even if the plaintiffs allegations are true, the law does not recognize such a claim The plaintiff can begin such an appeal immediately if the trial court grants the motion to dismiss, but if the trial judge denies the motion to dismiss, the defendant must wait until the case ends at the trial level before appealing

What are the rules regarding a service of summons by a personal service of summons?

defendant must be in the forum state, delivery person must be at least 18 years of age and not a party to the case.

What is strict liability?

defendants can be found guilty absent intent or even careless behavior.

What is a provisional patent application? Who uses these most?

defers any fees associated with patenting but gives a patent date if the applicant files a regular application within one year without making any material change in the description. Used by universities and small businesses a lot.

What is electronic discovery? What is a drawback of this?

demanding electronic documents. Very expensive; can be used as a weapon.

What is a general denial? When can a general denial not be used?

denies all the plaintiff's allegations together. Some courts require the defendant to deny all allegations individually.

What are the three tools of discovery proceedings?

depositions, interrogatories, and demand for documents

Common discovery tools:

depositions, interrogatories, requests for production of documents

What is a generic trademark? How protectable is it? Give an example.

describe an entire class of goods or services rather than a particular seller's version of a good or service. Not protectable by itself. Ex. car

What is a review of trial court's legal determinations?

determining if a trial judge correctly applied and interpreted applicable laws.

What is a review of trial court's factual determinations?

determining if the trial judge made an error.

Even if plaintiffs cannot show deliberate discrimination, they may be able to successfully bring *what kind of cases* under the Civil Rights Act.

disparate impact cases In this type of case, a plaintiff begins by arguing that a company policy impacts groups differently.

Harassment cases are a special category of what?

disparate treatment

When an employer intentionally discriminates based on race or any other factor covered by the Civil Rights Act, it amounts to what?

disparate treatment

Nat'l Federation of lndep. Business v. Sebelius - outcome

distinction drawn by the Chief Justice's majority opinion between the power of Congress to regulate "action" under the Commerce Clause, but not "inaction," is likely to be very difficult to apply because so many "actions" can also be viewed as "inactions"

Identify the four basic things that can be trademarked.

distinctive words, phrases, symbols, and designs.

Trademarks protect 4 things:

distinctive words, phrases, symbols, and designs.

(instead of a literal infringement case)... But what if a defendant's product copies only some parts of a patent claim? In such cases, a court will apply the _______________

doctrine of equivalents as described in Larami Corporation v. Alan Amron (the "Super Soaker case").

When is an agreement implied from conduct?

documents do not produce a contract, yet sellers often ship goods and buyers often pay for them in such instances

Life insurance policies commonly name a _______ ___________

donee beneficiary.

How is the dictionary used in statutory interpretation? (ejusdem generis and expressio unius est exclusio alterius)

ejusdem generis - when words or phrases follow a list of specifics, they should be interpreted to include only items of the same kind as those listed. Ex. when a statute prohibits A, B, C, and other things. D will be prohibited also if it is "of the same kind" as A, B, and C, not if it is of a different kind expressio unius est exclusio alterius - rule of interpretation providing that the listing of some things implies exclusion of others

Where is the idea of the takings clause rooted?

eminent domain - a sovereign may take private property for public purposes

What is a general trial court? What kinds of cases do they hear?

empowered to hear all cases except those expressly assigned to courts of limited jurisdiction. They hear the most important cases involving state law. They hear state trial courts, district courts, common pea courts, and superior courts

Under the UCC how definite must an offer be?

even if terms are left open, if (1) the court finds that the parties intended to make a binding contract and (2) the agreement and the surrounding circumstances give the court a reasonably certain basis for granting an appropriate remedy, then the offer is real.

Courts of Limited Jurisdiction: (State)

every state has trial courts that are limited to the kinds of cases the can hear — called courts of limited jurisdiction ex: peace courts, municipal courts, traffic courts, probate courts, etc.

What is the direct examination?

examination of the witness

What is a redirect examination?

examination to discuss any new info raised during the cross examination. Not always granted

Businesses and others often try to avoid this potential liability through the use of _______ __________ that purport to excuse them from liability resulting from their own negligence

exculpatory clauses

what is a quasi-contract? Give an example

exists only in those exceptional circumstances where a court feels compelled to impose an obligation upon one person regardless of whether he or she had any intention of making a contract ex. When a doctor administers emergency medical care no kind of contract is created but a court deems the recipient must pay for the services

The three types of authority are

express, implied, and apparent authority, - I have express authority if you directly tell me to do something on your behalf - Implied authority gives me the ability to do things that are customary in carrying out expressly communicated tasks - apparent authority:: This type of authority is created when a principal's conduct leads a third party who is outside the agency relationship to believe that an agent can do something.

The trial must settle questions of both _____ and _____

fact and law

Feist publications inc v. Rural telephone service co - outcome

facts are not copyrightable; compilations of facts generally are. Original means that the work was independently created by the author, and that it possesses at least some minimal degree of creativity. The phonebook possesses no creative element and is therefore not original.

What is the responsible corporate officer doctrine?

failure to control the criminal acts of subordinates (even where they had no knowledge of the acts or had been assured that the acts had stopped)

True or False: A corporation can be held criminally liable for any act of its employees.

false

True or False: Company Insiders are the only type of people who owe a duty to disclose or abstain.

false

True or False: Congress is allowed to force individuals into commerce and regulate that interstate activity.

false

True or False: In order to be convicted of a criminal offense, an act must be performed.

false

True or False: In order to win a suit, criminal or civil, intent to perform the action in question is required.

false

A party may file for a motion for judgment notwithstanding the verdict (also known as a J.N.O.V.) only prior to filing an answer.

false. A J.N.O.V. or JMOL (judgment as a matter of law) may only be filed following a jury verdict. A motion to dismiss is filed prior to filing an answer.

Bailors have a duty of reasonable care in taking care of the property.

false. A bailee, not a bailor, has a duty to use reasonable care in taking care of the property in his possession.

A contract of adhesion is one in which there is a certain amount of bargaining between the parties used to decide the exact details of the contract

false. A contract of adhesion is one in which one party has such superior bargaining power it simply offers a "take it or leave it" contract. This is usually a form contract offered by a merchant.

A contract requiring that an illegal action take place is a voidable contract

false. A contract requiring an illegal act is considered a void contract.

Precedent set by other states (such as Oklahoma) is mandatory authority which a Texas state court must follow.

false. A court does not have to follow the precedent from a higher court if the higher court is not directly above it. This means that Texas courts do not have to follow Oklahoma precedent, even if it is the Supreme Court of Oklahoma.

When doing an analysis to determine if a state regulation should be voided due to unduly burdening interstate commerce, the court balances the local interest being furthered by the regulation and the intent of the regulation

false. A court will balance the local interest being furthered by the regulation against the degree of burden it places on interstate commerce. Intent is considered when the doctrine of discrimination against interstate commerce is being applied.

It is generally easier for a plaintiff to win on summary judgment than a defendant.

false. A defendant moving for summary judgment only needs to prove that there is no genuine issue of material fact while a plaintiff must produce evidence strong enough to prove all elements of the claim, the defendant failed to present evidence that creates any doubt about any elements of the claim, and the defendant has failed to present evidence sufficient to create a genuine issue regarding an affirmative defense.

In order for duties of a contract to be delegated, the rights of the contract must be assigned as well.

false. A delegation of duties may be made without an assignment of the delegator's rights under his contract with the obligee. In such cases, the general rule is that the delegatee's only obligation is to the delegator.

In order to maintain a descriptive trademark, the entity with the trademark must prove that the term suggests some particular characteristic of the goods or services to which it applies and requires the consumer to exercise the imagination in order to draw a conclusion as to the nature of the goods and services

false. A descriptive term merely identifies a characteristic or quality of a product or service, such as its color, odor, function, dimensions, or ingredients. A suggestive term suggests some particular characteristic of the goods or services to which it applies and requires the consumer to exercise the imagination in order to draw a conclusion as to the nature of the goods and services.

Hypernorms are value which are considered extremely important in some cultures.

false. A hypernorm is a value that would be fully accepted in almost all cultures and organizations, such as fundamental human rights and basic prescriptions common to most religions

A contract may be modified without additional consideration under common law.

false. A modification contract— a contract that alters the terms of an existing contract—typically requires some new consideration in order to be enforceable

A special power of attorney grants an agent more powers those included in a general power of attorney.

false. A special power of attorney grants the agent power to act only in narrow ways and for specific purposes.

A copyright is any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale.

false. A trademark, not a copyright, is any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale.

Company Insiders are the only type of people who owe a duty to disclose or abstain

false. Along with Company Insiders, Temporary Insiders, Misappropriators, and any Tippee of the first three categories owe a duty to disclose or abstain

If plaintiff are at all responsible for accidents in which they are involved, they may not recover from other parties under a theory of negligence.

false. Although a small number of jurisdictions still follow the system of contributory negligence, which holds that if plaintiffs ares responsible for any of the accident, even 1% of it, they cannot recover, most jurisdictions follow a theory of comparative fault now. Comparative fault holds that defendant pay for the percentage of fault they contributed to plaintiffs' injuries. However, the majority of jurisdictions follow a modified comparative fault scheme, which provides that if the plaintiff contributed 50% (in some jurisdiction) or more than 50% (in other jurisdictions) to his harm, he cannot recover at all

An attorney generally cannot ever ask leading questions of a witness

false. Although an attorney is not allowed to lead the witness during direct examination, an attorney is allowed to lead the witness if it is an adverse witness

An employer can never be held liable for the tortious actions of an independent contractor

false. Although an employer generally is not liable for the tortious actions of an independent contractor, if the task is inherently dangerous, a nondelegable duty, or if the employer specifically directed, authorized, or intended for the wrongful conduct to occur, the employer will usually be held liable.

Section 2-207 of the UCC applies only to transactions between merchants

false. Although part of 2-207 applies only to transactions between merchants, that is not true for the entire provision.

A contract with a third party must exist in order to establish a claim for intentional interference with business relationships

false. Although the existence of a binding contract subject to interference is one of the elements of intentional interference with business relationships, the tort can be claimed to exist if (a) a reasonable probability that the parties would have entered into a contractual relationship; (b) an intentional and malicious act by defendant that prevented the relationship from occurring, with the purpose of harming the plaintiff; (c) defendant lacked privilege or justification to do the act; and (d) actual damage or loss occurred

Purely economic interests are extremely strong factors weighing in favor of allowing a state regulation to be allowed under the unduly burdening state commerce doctrine.

false. Although they are legitimate reasons, these interests typically do not weigh as heavily as a state's interest in protecting the safety and health of its citizens or protecting them against fraudulent or other wrongful practices.

An effective manager of a corporation should not attempt to alter political situations

false. An effective manager will attempt to alter political situations and regulations to aid their company.

Casey, while working for the corporation B12, injures David. This injury is the result of Casey acting outside his scope of employment. Regardless, B12 can be held liable for Casey's actions

false. An employer generally can be held liable for the actions of an employee if the actions of the employee was within the scope of employment

A contract must be expressly stated in order for a court to enforce it.

false. An implied contract is one in which the promises of the parties have to be inferred primarily from their conduct and from the circumstances in which it occurred. But under the proper facts, an agreement can be inferred from mere conduct

Placing an item up for sale in a typical "with reserve" auction constitutes a binding offer by the seller.

false. Because no contract is formed until the hammer falls or "sold" is announced, the seller is free to withdraw the item from sale if no bids are as high as the seller desires. But a seller who advertises an item as being up for auction "without reserve," is essentially promising to sell it to the highest bidder.

A person commits trade secret misappropriation only when he acquires information in a way that is independently illegal, such as committing a burglary

false. Conduct may be "improper," and thus constitute misappropriation, even though it is not illegal by itself

A copyright is within the scope of Article 2

false. Copyrights fail the tangibility requirement and, therefore, are not considered goods for the purposes of Article 2.

Johnny, a citizen of Texas, sues USC, a corporation incorporated in California with a principle place of business in Texas, for $2.5 million on a claim arising from state law. This suit can be brought in Federal Court.

false. Corporations are considered to be citizens of both the state in which they are incorporated in and where their principle place of business is. Because USC's principle place of business is in Texas and Johnny is a citizen of Texas, diversity jurisdiction cannot be established

Because a corporation is not an individual, a corporation does not have to be served prior to a suit.

false. Corporations generally appoint and register an agent to be served and some jurisdictions will consider service valid if any officer of the corporation is properly served.

When determining if there was a "meeting of the minds," the court generally looks to the actual intentions of the parties.

false. Courts consider the party's manifested or apparent intention because it is easier to prove. Besides, people can't be expected to read each other's minds, so they are entitled to rely upon what a reasonably objective third party would conclude based on what the other party said and did.

In order for a combination of things to be considered a trade secret, all of the individual pieces must be a trade secret

false. Courts have concluded that a combination of things can be a trade secret, even if none of the individual elements qualifies as a trade secret.

Deontology focuses on the net effects of doing an individual act

false. Deontology focuses on the act itself, rather than the consequences. This means that if, in the abstract, an act is bad, the act is never justified, regardless of its impact.

An individual cannot get out of a contract due to intoxication

false. Disaffirmance due to intoxication is allowed, but only if a person can establish that he or she was so intoxicated as not to understand the "nature of the purported agreement". Being a little buzzed does not do the job

Friedman believes that corporate managers shouldn't be allowed to devote their own time and money to whatever projects they deem fit

false. Friedman believes that managers should be allowed to do so, but that using corporate resources for such projects they are breaching their duty of loyalty to the shareholders

All judges in a panel for a circuit court must agree on the outcome of the case and the reasoning used to justify the outcome

false. If a judge does not agree with the majority of the case, he can write a concurrence if he disagrees with the reasoning and agrees with the outcome, or a dissent if he disagrees with the outcome.

A trademark consisting primarily of a geographic designation or someone's last name does not require a secondary meaning.

false. If a trademark consists primarily of a geographic designation or someone's last name, the law treats it in the same way as a descriptive mark, and secondary meaning must be proved for the mark to be protectable

When engaged in contact sports, all possible injuries are considered to be barred by the defense of consent.

false. If an injury occurred due to an action outside the rules of the game, it occurs outside of the consent given by the plaintiff. Due to this, an injury caused by an action outside of the rules of a game may be enough to state a claim for battery

Agents are always liable to third parties if their principals are insane

false. If the principal has not yet been declared insane, agents may not be held personally liable to the third party in many instances.

In order for an express warranty to be formed, the seller must use the word "warranty" or "guarantee."

false. If the seller's actions or other words that show the seller intended to make a warranty, this can constitute an express warranty. There are no magic words that must be used

In order to be convicted of a criminal offense, an act must be performed

false. If there is a legally imposed duty, a failure to perform may constitute the actus reus of a criminal offense

Congress is allowed to force individuals into commerce and regulate that interstate activity

false. In Nat'l Federation of Indep. Business v. Sebelius, also known as Obamacare or the Affordable Care Act Case, the Supreme Court ruled in a 5-4 decision that Congress cannot force individuals into economic activity so that that activity can be regulated

Employees and independent contractors both normally create liability for their principals when they commit torts within the scope of their employment

false. In many situations, an employer may be held liable for the conduct of an employee but usually not for the conduct of an independent-contractor

Under the Lanham Act, a deceived costumer is generally the one to bring a suit against the corporation

false. It is generally competitors who, while redressing their own injuries, seek under the Lanham Act to end false advertising that also injures consumers

Under Title VII's rules against discrimination on the basis of national origin, an employer cannot require all employees to be U.S. citizens.

false. It is not illegal for an employer to require employees to be U.S. citizens. Discrimination on the basis of national origin beyond that, however, is prohibited

In order to have a copyright, material must be registered with the U.S. Copyright Office.

false. It is not required. And, since 1989, there is no longer any requirement that a copyright notice be placed on a work. Still, it's a good idea to register.

Joint and several liability means that each defendant can be forced to pay up to 100% of the damages and that the plaintiff can get several times the damages awarded to him

false. Joint and several liability means that the plaintiff can get up to 100% of the damages awarded from either defendant, but not more than 100% total. The defendant who had to pay more than his or her share can then seek the difference in what they were supposed to pay from the other defendant

Judicial Review is established in the constitution

false. Judicial Review was established in the Supreme Court case Marbury v. Madison in 1803.

John Ladd's theory that corporations cannot have moral obligations is based on the concept of group dynamics

false. Ladd's theory is based on the idea that an organization is nothing more than an inorganic group of papers, laws, etc. Group dynamics is organization theory's concept that groups of employees often behave very differently than any single employee would have behaved in isolation, causing an organization to have a moral will of its own

Individuals are often more likely to commit wrongs in order to enjoy gains than to prevent loss.

false. Loss aversion, the idea that people detest losses more than they enjoy gains, causes individuals to commit wrongs to prevent losses that they likely wouldn't have to get a gain

All claims a defendant has against a plaintiff must be raised as a counterclaim in the answer.

false. Only compulsory counterclaims, that is, counterclaims that arise out of the same set of circumstances that led to the plaintiff's claim, must be raised in the answer. Furthermore, not all jurisdictions make any counterclaims compulsory. Non-compulsory counterclaims, also known as permissive counterclaims, may be brought as separate suits.

The only way to terminate an agency relationship is by fulfilling the purpose for which the relationship was created

false. Other methods to terminate an agency relationships include by operation of law, act of one party, mutual agreement, lapse of time, or occurrence of a specified event

Plaintiffs are able to recover punitive damages from negligence claims

false. Punitive damages are generally reserved for intentional torts because they are seen as a punishment instead of simply compensation

Money is never treated as a good for the purposes of the UCC

false. Rare coins and all money treated like a commodity are considered goods, although money used as a medium of exchange is not

Role morality refers to the practice of following the same set of morals regardless of the role one is taking.

false. Role morality is using different moralities for different roles played in society. Often people use different moral standards for their actions as employees advancing their employer's cause than they would use for their actions advancing their own personal interest

The Due Process requirement of the constitution is met if a defendant has enough minimum contacts for the court to establish personal jurisdiction over the defendant.

false. Simply establishing minimum contacts does not always ensure that the Due Process requirement is met.

A website accessible in a jurisdiction is enough to establish general jurisdiction

false. Simply having a website, "without requiring some level of 'interactivity' between the defendant and consumers in the forum state" is not enough to establish general jursidiction in a given jurisdiction.

All cases in Federal courts first appear before a Federal District Court

false. Some cases, such as bankruptcy cases, first appear before a specialty court.

Mediation is required before parties go to trial in all jurisdictions

false. Some jurisdictions have court-annexed mediation and require mediation prior to trial, but many do not.

Patent rights are non-transferable

false. State law determines what is necessary to sell or otherwise transfer patent ownership. Patents are often bought, sold, and licensed

CFOs are more likely to cook the books in order to benefit themselves financially than to do so in order to benefit another

false. Studies show that CFOs are more likely to cook the books to benefit their CEOs financially than to benefit themselves. This may illustrate the tendency people have to be obedient to authority

Most express warranties can easily be disclaimed via the text of a contract.

false. Such a statement would almost always be inconsistent with the words or conduct that created the express warranty. Because of this, it is extremely difficult for a seller to disclaim an express warranty which has become part of a contract.

An oral contract for more than $500 can be enforced under the UCC only if the defendant admits in his pleading or testimony that a contract was made

false. That is just one of the three major exceptions to § 2-201 of the UCC.

The Magnuson-Moss Warranty Act applies to all purchases and sales.

false. The Magnuson-Moss Act applies only to purchases by ultimate consumers for personal, family, or household purposes and not to transactions in commercial or industrial settings

The ADEA can support a cause of action by plaintiffs only if they are over 50 years old.

false. The age of the plaintiff must be 40 or older.

The common law and the UCC have identical requirements in order for something to be considered an acceptance.

false. The common law requires that the mirror image rule be met, while the UCC is more forgiving.

Mere insults are usually sufficient for a claim of intentional infliction of mental distress.

false. The defendant's conduct must usually be extreme and outrageous to constitute IIED

The parol evidence rule prevents any oral agreements that add to, or conflict with, the contract from being adduced as evidence in court if those oral agreements were made subsequent to the signing of the contract.

false. The parol evidence rule prohibits a party to a written contract from unilaterally introducing either oral or written statements or agreements made at or prior to the time the written contract was made which either conflict with, or add to, the clear, unambiguous terms of the written contract

The recipient of a life insurance contract is generally considered to be an incidental beneficiary.

false. The recipient of a life insurance contract is generally considered to be an intended donee beneficiary

A minor can receive a full refund is she disaffirms a contract for necessaries

false. The rule applicable to contracts calling for the purchase of necessaries is that the minor is liable to the other party for the reasonable value of the goods actually used

A court of equity hears all cases that seek equitable remedies, such as injunctions

false. There are no longer courts of equity in most states or in the federal system

A judge who fails to follow precedent set by a higher court will lose his or her position.

false. There is no direct punishment for failing to follow precedent set by a higher court. It is, though, likely that the judge's opinion will be reversed.

All contracts for a sale of goods exceeding $500 must be in writing in order to be enforceable

false. This is the general rule, but there are numerous exceptions. Under § 2-201, a verbal contract exceeding $500 can be binding if (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 in writing within 10 days; or (4) the party against whom the contract is to be enforced admitted in court proceedings that an oral agreement existed.

If a party is forced into a contract and "not given a meaningful choice", a court is likely to find the contract substantively unconscionable

false. This would be an example of procedural unconscionability. Substantive unconscionability occurs when the terms of the contract are "oppressive or unfair". Most courts hold that a contract must be both procedurally and substantively unconscionable in order to be unenforceable on unconscionability grounds

One of the disadvantages of arbitration is that it is not legally binding

false. Under the Federal Arbitration Act, all written commercial arbitration agreements and arbitrator awards are legally enforceable if the underlying business transaction affected interstate commerce. Even in instances where the underlying business transactions do not affect interstate commerce, state arbitration statutes in every state usually make the arbitration agreement and award enforceable

If A shoots at B, but accidentally hits C, A is not liable for a battery against C because he had no intent to injure C.

false. Under the doctrine of transferred intent, if A has intent to battery anybody (or assault anybody), he is liable for any battery he may complete

A contract for the sale of corn is not considered a sale of goods, for the purposes of Article 2, if the corn will be severed from the land by the buyer

false. Under § 2-107 of the UCC, a contract for the sale of growing crops or timber is a contract for the sale of goods, regardless who is to sever them from the land.

A UCC contract must have all details, such as delivery date and the exact price, included in order to be considered complete.

false. Under §§ 2-204, 2-305, 2-309, and 2-310 of the UCC, certain details can be taken care of by gap-fillers. This includes delivery date and exact pricing.

An intent to harm is necessary to establish a case for trespass

false. Unlike most other intentional torts, the intent element of a trespass cause of action requires the plaintiff to demonstrate only that the defendant intended to enter the place and that the place belonged to the plaintiff. The defendant need not intend to do any harm or to do anything wrong at all.

Uncertain and disputable debts are liquidated debts

false. Unliquidated debts are debts in which genuine disputes exist.

When an equitable claim and a legal claim are tried together, both claims are determined purely by the judge.

false. When an equitable and a legal claim are tried together, the jury makes the determination regarding the legal claim

What is the one necessary element of duress?

fear—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 acceding to the other party's demands.

Why do courts want diversity of citizenship cases to be eliminated?

federal courts and juries have people that are from the states in question as well so it doesn't solve the problem

Crimes are either _______ or _______

felonies or misdemeanors

What are the max penalties for violation of the economic espionage act for an individual? A corporation?

fines of up to $500,000 or ten years in prison for individuals and up to $5 million for organizations

How long is the statute of limitations for injury via breach of contract damages?

four years after the cause of action accrues. But the buyer has a duty to notify the seller of a breach within a reasonable time after it is discovered.

Examples of voidable contracts:

fraud minors contracts

What is a demand for documents?

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

Does Congress exercise the law of preemption?

generally no; when passing a law, Congress often provides expressly that states retain the power to adopt similar or related laws so long as those laws do not conflict with or hinder the objectives of the federal law

What are the four trademark categories?

generic, descriptive, suggestive, fanciful/arbitrary

What are the three types of trademark system? Which does the US use?

geography, priority, and registration. The US uses a hybrid of all three that provides protection based on the geographic area in which a mark has been used in connection with sales, and then provides expanded protection where the mark is registered.

Trade secrets are good because...

good cuz last forever, weak cuz doesn't give u exclusive rights.

What is Intermediate Scrutiny?

government must prove that the classification substantially advances an important government interest. Used in gender based discrimination cases.

What are non-permissible types of evidence?

hearsay, irrelevant evidence, opinion

What is the "firm offer rule"?

holds merchants to any signed promises to keep offers open for a specified time less than three months' duration

What subjects are not protected under copyright law?

ideas and facts

What is a descriptive trademark? How protectable is it? Give an example.

identifies a characteristic or quality of a product or service. Includes last names. Only protectable when secondary meaning can be proven. Ex. Dell, Vision Center

Descriptive TM -

identify a characteristic of a product (Vision center) (needs to achieve secondary meaning)

How are express warranties established?

if (1) an affirmation of fact or a promise relating to the goods, (2) a description of the goods, or (3) a provided a sample or model of the goods is part of the "basis of the bargain"

What is a reasonable medium for communicating an acceptance?

if (1) it is the same one used by the offeror; (2) it is one customarily used in prior dealings between the parties; (3) it is customarily used within the trade or industry; or (4) it is one which is authorized by the offer

What happens if a federal question is tried in a state court?

if a case had concurrent jurisdiction, but was tried in a state court and proceeded through all avenues of appeal in that system, either party may appeal to the US Supreme court

What is a Federal Question Case?

if a claim arises from the constitution, a federal statute, or a federal treaty

What is does Hired to Invent mean?

if an employee is using company time and resources while inventing, the invention belongs to the company

what is non-obviousness?

if an ordinarily skilled practitioner would have viewed the invention as a trivial or obvious advance over the cumulative prior art, it is obvious. Can use multiple instances of prior art.

Is a new term automatically part of a contract?

if both parties are merchants, the term becomes a part of the contract without any further assent on the part of the offeror, unless the term "materially alters" the contract; or the offeror objects to the new term within a reasonable time after receiving the offeree's acceptance

What is a mutual mistake?

if both parties were mistaken as to a material fact at the time of contracting, either party can rescind the agreement. This material fact can be the existence, identity, or character of the subject matter. Does not apply when parties are doubtful of a fact but enter the contract anyway.

What constitutes a likelihood of confusion? What are the factors affecting this? When is likelihood of confusion not allowed?

if consumers are likely to be misled into believing that the brand is associated with another brand or sponsors what that other brand is doing. Factors: 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. If the products are dissimilar and unrelated, however, even identical marks may not cause confusion.

When is an offer for the sale or purchase of goods irrevocable under CISG?

if it includes language indicating that it is irrevocable or even if it merely states a time for acceptance; does not require the offer to be written, and does not include a time limit on an offer's irrevocable status

What would render a contract illegal?

if it is contrary to that state's statutes, contrary to the public policy of that state, or any contract calling for the commission of a crime

When are warranty disclaimers disregarded?

if it is inconsistent with the words or conduct that created the express warranty

What types of hearsay are admissible?

if it possesses a high level of reliability it is admissible. Ex. A business ledger presented in lieu of someone testifying about a business transaction if it is second-hand info not presented for the purpose of proving the truth of a statement ex. Party A calls party B "a liar and a cheat" in a defamation case. This is stated not to prove validity of the statement but to prove that party A actually made a statement

Appealing a case

if litigants are dissatisfied with a trial court's handling of a case, they may appeal to a higher court. In the end, appellate courts must make a decision.

What is Pendant or Ancillary jurisdiction?

if multiple legal claims arise from one set of circumstances and it is brought to the federal court, the federal court then has jurisdiction over all claims

What is the Paris Convention?

if someone files an application in one member nation, the applicant can file for a trademark in another member nation within one year and keep the original filing date

Settlement of debts: (consideration)

if someone owes you $1,000 and you end up offering to cancel if they give you $300 today, you cannot sue them for not paying you the $700.

What is "payment in full" in debt settlement?

if the debtor B sends a check inscribed "payment in full" or similar words indicating an offer to settle the debt for that amount and creditor S endorses the check in the usual manner she is impliedly promising to free B of any remaining balance

What is promissory estoppel?

if the promisor makes a promise under circumstances in which he or she should realize that the promisee is almost certainly going to rely on the promise in a particular way, and if the promisee does so rely, thereby causing a substantial change in his or her position, the promisor is bound by the promise even though consideration is lacking on the part of the promisee.

What is a sophisticated purchaser?

if the purchaser is aware of risks, they are held accountable with that knowledge even without labeling

When are assignments illegal according to sales of goods contracts?

if they would (1) materially change the obligor's duties; (2) increase materially the burden or risk imposed on the obligor by contract, or (3) impair materially the obligor's chance of obtaining return performance.

How can one revive a debt?

if, after the statute of limitations has run, the debtor makes a new promise to pay the debt the general rule is that such a promise, if in writing, is enforceable despite the absence of consideration. Debt can be revived if debtor makes a part payment or acknowledges the debt.

Comparative fault ex:

imagine that, after a long day of creating online course materials, Prentice and Bredeson have a fender-bender in the faculty parking lot. 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 might conclude that the wreck was 90% Bredeson's fault and 10% Prentice's fault. Any damages going to Prentice would be reduced by 10%

What are bait and switch advertising statutes?

impose liability upon advertisers who lure readers into the store by offering fabulous 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

What is the purpose of quasi-contracts? What is this type of action called?

imposed only in circumstances where the failure to impose such an obligation would result in one party receiving an "unjust enrichment"—a benefit which, on the grounds of fairness alone, he or she ought to pay for. Quantum meruit action - "as much as is deserved."

American Invents Act (AIA)

in 2011, and its rules replace some key legal standards for patents issued on applications made after March 15, 2013.

What disallows states to regulate commerce? What types of laws can't they make?

in any circumstances except when preempted by some federal law, or when a state law discriminates against or unduly burdens interstate commerce.

When is opinion allowed as evidence?

in cases where a professional is asked to give their opinion on what may have happened when given a set of facts. Both attorneys must agree on a qualified witness

What is a Novation?

in the typical delegation, the delegator is secondarily liable on the contract if the delegatee assumes the duty but does not perform. An exception arises where the obligee agrees to substitute the delegatee for the delegator and to look no further to the delegator

What is Stare Decisis?

inclination of the courts generally to follow precedent—to stand by existing decisions

What are unforeseen difficulties?

increased costs, unexpected labor difficulties, or loss of expected sources of materials are within the rule if (1) the circumstance was truly unanticipated when the contract was made, and (2) the increased compensation is "fair and equitable under the circumstances"

What is state police power? Why is it important?

inherent governmental power to regulate the health, safety, morality, and general welfare of its people. Virtually all the powers of a particular state derive from this.

What is a court of equity?

injuctions and decrees of specific performance (divorce)

What are the remedies in a trademark infringement case?

injunction or prohibition of further use of the mark, damages (compensation for the economic loss sustained as a result of the infringement, and the amount of the infringer's profits from selling goods with the mark)

What are the remedies in a patent infringement case?

injunctions and damages - can include lost profits on sales of a patented item that the owner would have made if it hadn't been for the infringement, lost profits on sales of unpatented items that customers would have bought along with the patented items, plaintiff's losses because it had to drop prices as a result of the illegal competition, and interest on these amounts

What is a requirement for a product before a trademark can be registered? Is a mark protectable if this isn't met?

interstate commerce must be established. Under the Lanham Act if an applicant has not yet made interstate use of a mark but has a good faith intention (bona fide intent) to do so in the near future (1-3 years), they declare an "Intent to Use" (ITU)

In a disparate impact case... The plaintiff's prima facie case involves -

involves using one of several methods to demonstrate an adverse impact on workers related to race, color, religion, sex, or national origin. The defendant (company) may rebut this evidence by demonstrating a business necessity (i.e., that the challenged policy accomplishes a necessary and important business objective). The plaintiff can then try to show that another alternative exists that does not have a discriminatory effect.

What is the duration of a patent for a work-for-hire?

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

What is a warranty?

is an assurance or guarantee that goods will conform to certain standards

A valid contract -

is one in which all of the required (4) elements are present

When is consideration found to be adequate?

it does not have to be equal detriment to be binding.

When a contract lacks consideration, it is called a.......

it is called an illusory contract and neither party is required to live up to the agreement.

If an offer is terminated before it's accepted then....

it is cancelled and can never lead to a contract.

When is a mark protectable?

it must serve as a "source identifier" and have secondary meaning

Most common grounds for avoidance (disaffirmance of a contract):

lack of capacity and lack of reality of consent

What is civil law?

laws that enumerate rights and duties of individuals, businesses, firms, or sometimes government agencies.

When must a lease be written?

leases for a term of more than one year must be written

When cases are appealed to higher court, have good chance of success if they persuade higher court a ________ error was made

legal

On appeal, a panel of judges reviews a case for _______ errors

legal - the panel will consider the written record of a trial, briefs submitted by attorneys, and oral arguments made by attorneys before the appellate court

What is respondeat superior? What does this mean in the scope of the law?

let the master answer for the wrongs of the agent. Corporations can be held criminally liable for any acts performed by an employee if that employee is acting within the scope of his or her authority for the purpose of benefiting the corporation

Exculpatory clauses can only relieve defendants of what?

liability for simple negligence. Clauses that attempt to avoid liability for acts of intentional wrongdoing or even gross negligence are generally not effective.

A privilege of the Agents of Society view:

limited liability

What is a court of limited jurisdiction? What types of cases do they hear?

limited to certain types of cases. They hear the most cases, most of which are fairly minor. They hear traffic, probate (will/estate), domestic relations (divorce/custody), justice of the peace, municipal

What type of transaction does the Magnuson-Moss Warranty Act cover?

limited to consumer transactions

Article I, Section 8 in the Constitution

lists 18 specific things that the U.S. Congress is authorized to do. These are the enumerated powers and the list includes the power to regulate bankruptcies, coin money, and regulate commerce Some people and groups prefer a powerful federal government that makes many different kinds of laws and is involved in many things. Others would prefer a more limited federal government and more powerful states.

Section 10(b) of the 1934 Securities Exchange Act

makes it illegal to commit fraud in connection with the sale of securities

What is strict liability? Where is it usually applied?

manufacturers and sellers are held liable irrespective of fault. Focuses on personal injury

What are the three types of defects the Third of Torts specifies?

manufacturing defects, design defects - design defects are not under the consumer expectations clause because consumers aren't expected to have enough knowledge to design a product, warning defects - if the omission of the instructions renders the product not reasonably safe

What is general welfare as pertains to the state police power?

marriage and divorce, the inheritance of property, and landlord-tenant relationships

What is the doctrine of Inevitable Disclosure?

may prevent an employee who has left Company A from working for Company B if the employee's new job duties will inevitably cause the employee to rely upon knowledge of the former employer's trade secrets

What is the justification of strict liability?

merchants and manufacturers are better able to bear losses than injured consumers and that, in many cases, losses will be transferred to the buying public in the form of higher prices on products. Thus, society at large assumes the cost of damages suffered by a few. In addition, eliminating the need to prove negligence in a tort action will make manufacturers and sellers more mindful of accident prevention

What is negative know how?

mistakes leading up to a discovery; are also protectable as trade secrets

Outcome in civil cases typically resolves on...

monetary compensation/damages ex: even a civil case on death (wrongful death) could be a monetary

What do courts of law grant?

money, land, personal property. Also known as remedies at law.

What loans often receive higher interest rates than are generally allowed?

most states put no limit on the rate of interest that can be charged on loans made to corporations

What are the two steps a losing party can take after a verdict?

motion for judgement notwithstanding the verdict, motion for new trial

Pros to arbitration:

much faster and less expensive than a trial

what are discovery proceedings?

much of the evidence that each party is going to rely on in proving their version of the facts is fully disclosed to the other party before the case comes to trial

What does Magnuson-Moss say about warranties over $15?

must be contained in a single document, and include (1) a description of items covered, (2) instructions on how to proceed in the event of product failure, (3) the identity of those to whom the warranty is extended, and (4) limitations on the warranty period.

What does Magnuson-Moss say about warranties over $10?

must be listed as either full or limited

What are some requirements for something to be patentable?

must be novel and non-obvious when compared to prior art, be operable, and have a useful result.

What are some requirements for something to be patentable?

must be: (1) patentable subject matter, (2) useful, (3) novel, (4) the result of a patent application that was originally filed within one year after certain actions that revealed the invention, and ( 5) "non-obvious" (not obvious to an ordinarily skilled practitioner in this area of technology

How does a court gain court jurisdiction over a case?

must have subject matter and personal jurisdiction

How is a case made under the Economic Espionage Act?

must prove stolen info was a trade secret, the defendant knew it was a trade secret, and the defendant intended to provide an economic benefit to a person other than the rightful owner, and that the defendant intended to injure the owner of the trade secret

What are the types of mistake?

mutual and unilateral

Some things that cannot be patented?

naturally occurring substances and abstract ideas, though particular applications of these things can be patented

What are some things that cannot be patented?

naturally occurring substances and abstract ideas, though particular applications of these things can be patented

Do modification contracts require consideration?

needs no consideration to be binding" if that modification is made in good faith and, not "unconscionable"—i.e., shockingly onesided

What happens if property is damaged when in the bailee's possession?

negligence is presumed and the burden is on the bailee to explain how this happened without negligence

Must an invention be built before it is patented?

no

Must intent be proven in a negligence case?

no

What is equal protection?

no State shall. . . deny to any person within its jurisdiction the equal protection of the laws.

What is a liquidated debt?

no genuine basis for a good faith dispute as to the existence or the amount of the indebtedness

What is due process?

no person shall be deprived of life, liberty, or property without due process of law

What is the innocent bystander defense?

non-purchasers (including borrowed the product from the buyer) cannot sue anyone in the chain of distribution

What is a white collar crime?

nonviolent acts by individuals or corporations to obtain a personal or business advantage in a commercial context

Free speech

not an absolute right, (you can't shout "Fire!" in a crowded theater, for example).

A Void contract/agreement =

not enforceable contract, can't bring it to court (contract on selling drugs =EX) because it defies one of the elements, legality.

What are the types of negligence and duties exist in products liability?

o A duty to warn arises when a product's design (or its intended use) subjects the user to hazard or risk of injury o A duty to inspect exists when the seller is involved in the installation of goods o A manufacturer is charged with taking reasonable measures to discover flaws created during the production process and o Liability is imposed if defects are reasonably apparent o Negligent manufacture o negligent design - the manufacturer is expected to design a product with optimal safety as the ideal o Often used in lieu of the privity argument

Misappropriation of a trade secret

occurs when a trade secret is wrongfully taken. If a hacker invades a computer network and accesses trade secrets, or if a company sends James Bond into a competitor's research lab to steal the blueprints for a new weapon, then a trade secret lawsuit would be successful Integrated Cash Management Services v. Digital Transactions (example)

What is rejection?

offeree notifies the offeror that he or she does not intend to accept

Lapse:

offers eventually lapse or expire even if they are never revoked or rejected. They may state a specific time of expiration or even without any specified time, offers automatically lapse after a reasonable time.

What is a valid contract?

one in which all of the required elements are present. As a result, it is enforceable against both parties

What is a voidable contract? Who can always withdraw from a voidable contract?

one of the parties to a contract has the legal right to withdraw from it at a later time without liability. Contracts in which fraud is present fall within this category, because the law permits the one who has been defrauded to set aside the contract.

What is a contract of adhesion?

one party—usually having greatly superior bargaining power than the other—prepares the terms of a proposed contract and presents it to the other party on a take-it-or-leave-it basis

What is the UCC's policy on recovery for products liability?

only avenue for product liability recovery is for mere economic loss

When may a buyer reject goods under CISG? What are the remedies in such a case? Where are they derived from?

only if there is a "fundamental breach." A buyer may require a seller to perform in accordance with the promise or fix an additional time for the seller to perform. This latter option is not contained in the UCC but is derived from German law.

Are sales of minerals or structures sales of goods?

only if they are to be severed form the land without material harm to the real estate; otherwise they are sales of real estate

What is a writ of garnishment? What is exempt from a writ of garnishment?

orders a third party holding property belonging to the defendant to deliver the property to the custody of the court. This can include seizing wages until a judgement is paid. Some property is exempt from seizure ex. usually a home is exempt

What is the National Conference of Commissioners on Uniform State Laws (NCCUSL)? What was their biggest contribution?

organization that drafts uniform/model laws in hopes that many states will adopt them so variability in commercial regulations will decrease. The UCC is their biggest contribution.

To encourage creation and disclosure of inventions, the Constitution authorizes the federal government to grant__________ to inventors.

patents

How is infringement proven? How is it proven in a thin copyright?

plaintiff can prove infringement by showing that the defendant's work is "substantially similar" to the plaintiff's work or in the case of a thin copyright it is proven by "virtual identity" (virtually identical)

What are the limitations on strict liability?

plaintiff may find it difficult to prove that a product left the hands of the seller in a defective condition

What are the stages of pretrial?

pleading, motion to dismiss/answer, reply, discovery

What is a personal jurisdiction case?

power over a party in a case

What are reserved powers?

powers not granted to the federal government; continue to reside with the states

What are delegated powers?

powers that are specifically given to it in the Constitution

what is the voir dire examination?

preliminary questioning of each juror by the plaintiff's and defendant's attorneys, by a judge, or by all three, to ensure that they are as impartial as possible

What is Administrative law?

principles that govern procedures and activities of government boards and commissions.

What is the takings clause?

private property shall not "be taken for public use without just compensation."

What types of unconscionability are there?

procedural and substantive

What is substantive due process? when is it used?

prohibits statutes, regulations, and other kinds of government action that are arbitrary and irrational; abused until the 1930s, not not used much.

What is an implied contract?

promises (intentions) of the parties have to be inferred primarily from their conduct and from the circumstances in which it occurred

What is a home solicitation statute? What are the necessary elements for this statute to impact a sale?

protect persons who are subjected to high-pressure sales tactics by salespersons who come to their homes. A buyer has an automatic three-day period in which to cancel a contract where: (1) the contract is for land, goods or services worth over $25; (2) the sale was initiated by the seller; and (3) the contract was completed at a place other than the seller's place of business (usually the buyer's home).

Intellectual property law

protects certain types of knowledge, ideas, and expressions by granting exclusive rights to creators. These exclusive rights are a type of intangible property right. Trademarks, trade secrets, patents, copyrights

What is the Racketeer Influenced and Corrupt Organizations Act (RICO)?

provides both civil and criminal penalties for committing acts of "racketeering" such as mail fraud, wire fraud, and bankruptcy fraud as part of a "pattern" of criminal activity.

What is the Trademark Counterfeiting Act of 1984? What are the maximum penalties for individuals? Corporations?

provides escalating criminal penalties for multiple offenders. A second offender, if an individual, can be fined up to $5 million, imprisoned for up to 20 years, or both. Corporations may be fined up to $15 million.

What is constitutional law?

provisions guaranteeing protection of certain rights of an individual or business from state/government activities.

Tiffany v. Boston Club - arguments and outcome

public is not likely to believe that the owners of the "Tiffany" trademark were also responsible for the bar, and thus there would be no likelihood of confusion. However Tiffany is a famous mark and therefore others' use could lead to blurring and tarnishment.

What is Mail and Wire Fraud?

punish use of the mails and the wires (telephone, television, Internet) as part of a scheme to commit a fraud

What is the Hobbs Act?

punishes anyone who obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion

What is the Travel Act?

punishes anyone who travels in interstate to distribute the proceeds of an illegal activity, commit a crime of violence, or promote, manage, establish, carry on, or facilitate any unlawful activity.

What is an exculpatory clause?

purport to excuse companies from liability resulting from their own negligence.

Questions of fact vs. Questions of law:

questions of fact: "what happened" questions questions of law: "what is the rule applicable to the facts"

What are the three levels of protection against unreasonable distinction?

rational basis test, intermediate scrutiny, and strict scrutiny.

The law of torts imposes certain duties on all persons, one of which is to carry out one's activities in a __________ __________ manner.

reasonably careful

Copyright owners rights:

reproduction, public performance, derivative works

What are some common steps in primary negotiations that do not express intent to contract?

requests for information—called inquiries, and negotiations

The Equal Pay Act

requires equivalent compensation by gender when workers have jobs that require equal skill, effort, and responsibility.

What is labor arbitration? What act made this legally binding?

resolves disputes between a union representing employees and another party. Taft-Hartley Act makes collective bargaining agreements, including arbitration provisions, legally binding.

Hartland Computers Leasing Corp v. The Insurance Man Inc - outcome

reversed; adhesion contracts are enforceable if they are reasonable.

An offer is terminated if it is...

revoked, rejected, or lapse. They may also terminate by operation of law.

Explain insurance contracts. When are they legal? What kind of contracts are they?

risk-shifting contracts - contracts whose performance is dependent upon an element of chance. An insurance policy is simply a contract by which an existing risk is shifted to an insurance company for a consideration paid by the own . Only legal if insured person has an "insurable interest" in the home prior to taking out the policy

What instructions does the judge provide to the jury?

rules of conduct (refrain from discussing the case with anyone except other jurors), definitions of relevant legal terms, and the court's charge to the jury

A principal (agency) must be...

sane, at least 18 years old, and sober, but an agent can create a contract binding on the principal even if the agent is a minor, outrageously drunk, etc.

What is the Class Action Fairness Act of 2005 (CAFA)?

says that federal district courts have jurisdiction over a civil class action suit if the controversy exceeds $5 million

What is secondary infringement?

secondary (or indirect) infringement is when a person or company provides the means to the actual (direct) infringer to commit the infringement or actively induces (encourages) the direct infringer to commit infringement.

Under the UCC what other contracts must be written?

security agreements, leases of goods worth more than $1000, real estate listings contracts, and insurance contracts

What is the significance of Marbury v. Madison?

settled the question of which branch had ultimate authority to determine constitutional issues; decided the U.S. Supreme Court assumed this power for the judicial branch of government and has the final say in deciding whether the Constitution has been violated by a congressional or state law or executive action

Patent is ...

shorter lived, only 20 yrs. but you do have exclusive rights = strength, no one else can sell it

Arbitration

sign a contract, get an arbitrator (give power to him) can make legally binding decision. They have legal power to do things. ex: Oxford Health Care Plans v. Sutter No appellate arbitrators - decisions tend to be final (possible to appeal to appellate courts but not easy)

What is a void contract? Under what circumstances can a contract be declared void?

so far as the law is concerned, they never existed at all. Contract can be declared void if: one of the parties is wholly incompetent at the time of contracting, or the purpose of the contract is totally illegal

What is a cybersquatter?

someone who registers an Internet domain name (1) that is the same as or confusingly similar to someone else's protected trademark, (2) where there is a bad faith intent to commercially exploit the trademark, and (3) the likely effect is to either cause confusion, or, if the mark is famous, to cause dilution

Promissory estoppel: (consideration)

sometimes, even though an agreement is not supported by traditional consideration, a court will enforce it anyway using the doctrine of promissory estoppel. This doctrine allows courts to stop the breaking of a promise if a gross injustice would arise otherwise. A promisee's foreseeable and detrimental reliance upon the promisor's promise is the key to finding a promissory estoppel.

What is res judicata?

specifies that a plaintiff cannot start over by filing another claim based on the same general facts.

What is Scenes a Faire?

standard techniques necessary to convey particular ideas, such as descriptions of the stereotypical Jewish mother or the stereotypical Irish father

The Takings Clause

states that "private property [shall not] be taken for public use, without just compensation."

When the congress or state leg. creates a new law, it is called a _______

statute

What are health, safety, and morality as pertains to the state police power?

statutes relating to the operation of motor vehicles, the manufacture and sale of alcoholic beverages, and the regulation of crime

Corporate law, criminal law, and tax law are primarily _________ in nature

statutory

Suggestive TM -

suggest something about a product without directly describing it (Greyhound bus)

When does an assignment take effect? What notice should be given?

takes effect the moment it is made, regardless of whether the obligor is aware that the assignment has occurred. Assignee should give immediate notice to the obligor whenever an assignment is made in order to protect the rights received under it

What does a sale of goods contract not pertain to?

temporary possession of the goods (such as leases) or gifts

What is a summary judgement? When can it be granted?

terminates the case before trial; granted if evidence clearly indicates that one side is entitled to win. Can be granted only when there is no genuine issue of material fact.

Friedman's view:

that says corporations are not moral agents and have no duty other than to meet the mandates of the law

How is the bill of rights applied to state law?

the Fourteenth Amendment's due process clause is a vehicle for applying almost everything in the Bill of Rights to state and local governments

What is the doctrine of incorporation?

the Supreme Court has concluded that the concept of due process includes many other basic rights including privileges and immunities, freedom of speech, freedom of religion, equal protection

Expansion of Commerce clause and regulations

the Supreme Court has greatly expanded the reach of the Commerce Clause and has interpreted commerce to include almost any business activity. State regulations of commerce are typically legal if they do not conflict with Federal Preemption , Discrimination against Interstate Commerce, Unduly burdening interstate commerce

Basic elements of a contract:

the agreement which consists of an offer followed by an acceptance.

Peppercorn rule:

the amount of consideration does not matter, only its presence or absence is relevant

What goes into an oral brief? how often are these heard?

the attorney for each side will have a brief period (typically from 30 to 60 minutes) to clarify and emphasize the most important points in the written briefs and to give the appellate court judges an opportunity to ask questions time is scheduled for this a few times a year

US District Courts

the basic trial courts — sometimes called federal district courts congress has 94 judicial districts Most important in the federal system but not really courts of general jurisdiction - essentially a repository of general judicial power; if no other court has jurisdiction over particular type, then state court of general jurisdiction has power to hear but federal courts are part of the govt and have power to hear only those cases specifically placed in their jurisdiction by statutory enactments

What is general intent?

the defendant had the general intent to commit a wrongful act even though he or she did not intend to bring about the specific result

What is specific intent?

the defendant had the intent to commit the exact forbidden act charged

Who is the delegatee responsible to in an assignment of delegation?

the delegatee's only obligation is to the delegator

The Supreme Court has identified certain factors to be considered in determining whether a duty is owed to third persons: (concept of duty)

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

What must a plaintiff prove in a third of torts case?

the foreseeable risks presented by the product's current design outweigh the design's utility

Consideration

the idea that a contract must be a bargained for-exchange.

What are the elements that must be proven to bring a trade secret case?

the info was a trade secret, the plaintiff took reasonable measures to protect this secret, and the defendant improperly acquired and used the info

What is an express contract?

the intentions of the parties are stated fully and in explicit terms, either orally or in writing

General Trial Courts: (State)

the most important cases involving state law commence here courts of "general jurisdiction" - empowered to hear all cases except those expressly assigned by statute to the courts of limited jurisdiction sometimes called district courts, common plea courts, superior courts

Criminal law differs from Civil suits in the nature of the....

the nature of the liability imposed and in criminal action it is necessary the government's case be proved beyond a reasonable doubt - whereas in civil actions the plaintiff need prove his allegations only by a "preponderance of the evidence"

Corporate social responsiveness or corporate social responsibility (CSR)

the notion that corporations and other types of firms have moral responsibilities that are more than just to maximize profits for their shareholders. the pro-CSR view is that their responsibilities are necessarily broader than just profit maximization.

When does the reasonable medium rule not apply?

the offeror is the "master of the offer," and can put any terms or conditions he or she wants in the offer - the offeror may specifically state in the offer that an acceptance will be effective only when actually received by the offeror. Courts have generally not applied the mailbox rule to e-mails. Acceptance is effective not when sent but when it arrives at the recipient's e-mail server (even if it has not yet been read by the offeror).

An example of one type of unilateral offer is made frequently in the real world =

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

What is the only term that must be included in a UCC contract for it to be considered valid?

the quantity

What are the steps in the appeal process?

the record, written briefs, oral briefs, and decision

What is an easement? When must it be written?

the right of one person to do something on someone else's land. If created in an express manner, the granting of the right must be evidenced by a writing.

Rottner v. Avg Technologies Inc - outcome

the sale of a software package has been classified as the sale of a good for UCC purposes. motion to dismiss denied.

Statutory law

the state and federal statutes in effect at a given time — formally adopted by legislative bodies rather than by the courts - refers to legal rules created by bodies of elected representatives

What is an unconscionable contract?

the terms of a particular contract are so extremely unfair to one of the parties in light of common morals and business practices that they "shock one's conscience."

If a person violates the reasonably careful manner duty by performing an act carelessly, he or she is guilty of

the tort of negligence and is answerable in damages to anyone who was injured thereby.

What is a delegation of duties? What is its relation to assignment of rights?

the transfer of one party's contractual duties to another. May occur with or without an assignment of rights

Systems and Software Inc. v. Barnes - outcome

the trial court found that SSI had a legitimate protectable interest, and the evidence supports the court's finding. Affirmed.

What happens if neither party requests a jury?

the trial judge performs the fact-finding role in addition to the judicial function

what is a full warranty?

the warrantor must assume certain minimum duties and obligations such as replace or repair within a reasonable time, or provide a cash refund

If state appellate court cannot reverse or remand a court, then...

then it goes up another level and goes to the State Supreme Court. There's only one other way to go higher, a State Supreme Court case can go all the way up to the federal Supreme Court. This usually happens if a state level issue is becoming apparent at a country level

Gonzales v. Raich - arguments and outcome

they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause. However, Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. Ninth circuit's decision is remanded.

What are courts of law and equity like today?

they combined; there are now two types of action for one court. Jury decides damages, court decides injunctions

Many defenses to crimes focus on what element

third element - defendant intended to violate law (argue not responsible for actions bc intoxicated, insane, mistaken, etc.)

Totem Marine Tug and Barge v. Alyeska Pipeline - outcome

this was economic duress. Reversed and remanded.

Merchants =

those who "deal with goods of the kind." Merchants generally make their money selling these goods of a particular kind. Manufacturers, wholesalers, and retailers are obviously merchants.

How is an implied warranty created?

through the mere act of selling; if the seller is a merchant with respect to the type of goods being sold

What is in a warranty for a title of goods?

title conveyed shall be good, its transfer rightful (no stolen goods), shall be delivered free from any security interest or other encumbrance of which the buyer at the time of contracting has no knowledge (ex. Selling a mortgaged good without informing the buyer of the mortgage), and goods sold should not infringe on the patents, copyrights, or trademarks of a third party

According to Agents of Capital View, agents of the shareholder's only duty is to..

to earn as much money as possible for the shareholders, within the limits of the law and customary ethical practices

Why have diversity of citizenship cases tried in a federal setting?

to guard against "hometown verdicts"—decisions by juries or judges that are biased against an out-of-state party

Trademark law:

to protect a company's identity and to keep consumers from being confused about company identity (e.g., logos, slogans)

Copyright law

to protect the creator's rights to the creative product

Otis Engineering Corp. v. Clark is an example involving

torts

How is legislative history used in statutory interpretation?

transcript of hearings from when bill was in the process of being passed, floor debate transcripts. This information provides direct insight on why wording was chose, etc.

Two primary types of courts in both state and federal systems

trial and appellate

True or False: The Privileges and Immunities Clause applies only to individuals and not to corporations.

true

True or False:Corporate Officers can sometimes be held liable for the criminal acts of their employees, even if the officer had no knowledge of the employee's acts.

true

True or False:Federal Preemption can apply to conflicts that don't involve the Commerce Clause.

true

True or False:The government can legally force you to sell your property to them.

true

A contract may sometimes be rescinded if only one party is mistaken as to a portion of the contract.

true. A contract may be rescinded due to a unilateral mistake if the mistake was apparent, or should have been, to the other party.

If a car salesmen sells his used lawnmower, he is not considered a merchant for the purposes of Article 2 of the UCC

true. A party is considered a merchant only for the types of goods dealt with regularly in his or her business.

A statement is more likely to be considered an express warranty if it is objectively verifiable.

true. A warranty is more likely to be found if the statement is objectively verifiable. Statements of opinion do not give rise to warranties.

An advertisement is usually not considered to be an offer

true. Advertisements are usually considered to be preliminary negotiations, though there are some exceptions to this general rule

Principals may be held liable for contracts signed by their appointed agents even in cases when the agents acted outside of the direct authority granted to them by the principals

true. Agents have implied authority and apparent authority, in addition to express authority. Implied authority covers acts that the parties did not expressly address when forming the relationship. Apparent authority, although technically outside of the authority of the agent, arises when a principal leads a third party to believe that the agent has authority to do an action. Finally, principals may be liable if they ratify the actions of their agents, even if the agents lacked express, implied and/or apparent authority.

Following the custom of an industry or culture may be evidence that the defendant met the "reasonable person" standard, even if people of a different industry or culture may find this action reckless

true. Although in cases such as The T.J.Hooper, industry custom did not prevent liability, following an industry or cultural standard often constitutes following a reasonable person standard

The primary difference between assault and battery is that assaults only involve apprehension while batteries are intrusions of the body

true. Although modern courts and statutes frequently use the two terms interchangeably, technically a battery is a rude, inordinate contract with the person of another. An assault, basically, is any act that creates an apprehension of an imminent battery.

If an agent commingles his own money with that of the principal, and if it can no longer be separated or identified, the principal may legally take it.

true. An agent has a duty to account for all the expenses and assets of the principal (related to the contract) and the principal may legally claim any commingled money if it cannot be separated or identified.

Logan, an employee of VT, causes injury to Marcus while acting in his scope of employment. VT can be held liable for Logan's actions against Marcus

true. An employer can be held vicariously liable for the actions of its employee if the actions done by the employee which caused injury to the third party were within the scope of employment

An incidental beneficiary has no rights under a contract and cannot enforce it.

true. An incidental beneficiary is a person whom the contracting parties did not intent to benefit by making the contract. Because of this, an incidental beneficiary has no rights under a contract and cannot enforce it.

Article 2 of the UCC applies to the sale of goods

true. Article 2 governs the sale of goods. In order for something to be considered a good, it must be movable and tangible

AJ buys a car from Aaron. The car AJ buys breaks down the first day, so AJ sues Aaron. Because of the car breaking down, AJ has failed to make payments on the car. In most states, Aaron's suit against AJ must be brought as a compulsory counterclaim, or else it he will lose the ability to pursue the claim

true. Because Aaron's claim against AJ arises out of the same set of circumstances, it is a compulsory counterclaim. Compulsory counterclaims which are not brought in an answer are generally waived.

The adversarial judicial system tends to put more cost in the private sector while the inquisitorial system tends to put more cost in the public sector

true. Because the adversarial system requires that the lawyers do the majority of the investigation and research, it tends to cost more for the private sector. The inquisitorial system requires much more out of the judges and, therefore, costs more for the public sector

Violators of the Consumer Product Safety Act may suffer imposition of both civil and criminal fines.

true. Both civil and criminal penalties are available and often sought by the CSC

Common Law is unique because it is able to adapt.

true. Common Law can be changed from case to case.

Congress has the ability to delegate legislative powers to other branches.

true. Congress can, and has many times before, allowed other branches to create agencies with legislative-like powers. Some examples are the SEC, the U.S. Patent and Trademark Office, and the U.S. Parole Commission.

A minor can disaffirm a contract even after both parties have executed their portion of the contract.

true. Contracts that have been fully performed before the disaffirmance takes place can still be repudiated. Contracts that have not been performed are typically easily avoided by the minor.

A court will generally consider the textual context of a statute when attempting to determine the meaning of an ambiguous statute, prior to taking into account the circumstantial context of the passing of the statute.

true. Courts often consider the textual context of a statute when trying to interpret the meaning of the statute prior to considering the circumstantial context of when the statute was passed

Johnny, a citizen of Texas, sues AJ, a citizen of Alabama, for $80,000. This case can be brought in a Federal District Court, even if it is a claim arising from state law

true. Diversity of Citizenship allows for a case to brought in Federal Court when there is diversity of residency between parties and the claim is for at least $75,000.

Johnny, a citizen of Texas, and Ash, a citizen of Texas, sue AJ, a citizen of Alabama, and Jeff, a citizen of Florida, for $100,000 from a claim arising from state law. This case can be brought in federal court.

true. Diversity of Citizenship allows for a case to brought in Federal Court when there is diversity of residency between parties and the claim is for at least $75,000. The residency requirement only applies when opposing parties are from the same jurisdiction

An exception to the Contract Clause may exist if the legislation is reasonably necessary to further a substantial state interest.

true. Even if a state law does have an effect on preexisting contracts, the legislation does not violate the contract clause if the law promotes an important state interest and interferes with contracts only to an extent that is reasonably necessary to further that state interests

Making a payment or acknowledging a debt after expiration of the statute of limitations revives the debt and resets the statute of limitations

true. Even without consideration, this will reset the statute of limitations.

Every state has at least one level of appellate courts

true. Every state has at least on level of appellate courts

Simply having an employee sign a code of ethics can significantly reduce or eliminate unethical behavior.

true. Experiments show that bringing ethical principles to people's minds by having them read or sign an honor code significantly reduced or eliminated unethical behavior.

Milton Friedman's view is that corporations are agents of capital and that they have only a duty to earn as much money as possible for the shareholders, within the limits of the law and customary ethical practices.

true. Friedman believes that companies should not engage in correcting problems the company did not cause and that it is not appropriate for the company's managers to do so.

Even if an agreement is in writing, if it lacks consideration, neither party can enforce it.

true. Generally, if an agreement lacks consideration, neither party can enforce it, even if it is in writing. Consideration is an essential element of an enforceable contract

When deciding whether a principal is liable to a third party, a principal is generally considered to be on notice if her agent is on notice.

true. Generally, notice to the agent is treated as notice to the principal if the agent's receipt of the notice is within the scope of his actual or apparent authority. The agent may be liable to the principal if the agent fails to pass the information along to the principal.

The rights of a trademark can be lost if a trademark term becomes generic

true. Genericide, or allowing a trademarked term to become generic, can cause a trademarked term to lose its legal protection. In most cases, the owner of the mark was simply complacent and took few if any steps to make sure that consumers understood that the mark was the owner's brand rather than an identifier of an entire class of goods

An advertisement can be considered an offer for purposes of a contract if it states that the quantity of an item is limited

true. If an advertisement states the quantity of an item has been limited, states what the item is, the price, and the seller, it is likely to be considered an offer that may be accepted

Some warranties can be waived simply because the buyer expressly refused to examine the goods

true. If the buyer deliberately refuses to examine the goods at all, no implied warranty exists for reasonably apparent defects.

If a defendant fails to respond to a complaint within a certain amount of time (generally 20 days), a default judgment can be granted against the defendant and the plaintiff wins by default

true. If the defendant does not reply in a timely matter, the plaintiff automatically wins by means of a default judgment against the defendant.

Fraud may be committed by a failure to disclose information.

true. If the defendant has a duty to disclose certain information, the elements of fraud may be met even if the defendant did not lie. Fraud can include false statements or failure to disclose where a duty to disclose exists.

The reasonable person standard is not always applied to cases of assault.

true. If the defendant knows that the plaintiff is an unusually sensitive person and threatens contact that the plaintiff finds offensive although most persons would not, an assault occurs

Conner, a citizen of South Carolina, intentionally publishes articles defaming Blake, a citizen of Oklahoma, in the state of California. Defamation is an intentional tort. The state of California has personal jurisdiction over Conner.

true. If the harm of an intentional tort is aimed at a specific jurisdiction, a court has personal jurisdiction even in the absence of other forms of personal jurisdiction

Even if it is possible to comply with both a federal and state law, the state law may still be struck down under the principle of direct conflict.

true. If the state law substantially interferes with the purpose of the federal, the state law may still violate the principle of direct conflict.

A copyright lasts for the life of the author plus 70 years.

true. In 1998, Congress extended the term of copyright protection to the life of the author plus 70 years. A work for hire copyright lasts for the shorter of 95 years from date of publication or 120 years from date of creation.

Personal jurisdiction over certain cases, such as bankruptcy cases, can be established simply by having property relevant to the suit within the jurisdiction of the court

true. In Rem jurisdiction, which can be established by having property within the jurisdiction of the court, can satisfy jurisdictional requirements for a case

A majority of consumers say that they had either rewarded or punished companies in the past year based on their social performance

true. In a recent poll, 51% of consumers said that they had either rewarded or punished companies in the past year based on their social performance.

A promisor does not have to receive any benefit from a unilateral contract in order for a consideration to be present

true. In cases such as Hamer v. Sidway, the promisee may simply incur a detriment; the promisee does not have to receive any benefit

A debtor's written promise to pay a debt after the statute of limitations has expired is enforceable despite lack of consideration

true. In such a case, the debt is said to have been "revived" and the creditor now has a new statutory period in which to bring suit

Individuals are more likely to commit a large wrong if they are asked to commit several smaller ones eventually leading up to the larger one.

true. Incrementalism is the slippery slope. It means that if the deeds that an individual is asked to do start out smaller and slowly increased, they are more likely to do the larger deed.

The UCC does not generally apply to contracts between entities in different countries

true. It is the CISG that applies by default to contracts between entities in separate countries, assuming that both countries have adopted the CISG and the parties have not decided to abide by a different set of rules.

A contract may be set aside due to unequal bargaining power in certain circumstances.

true. Many courts accept the idea of economic duress, meaning that if one party knows that the other party has no reasonable alternative to their offer, it may constitute duress, as exampled in Totem Marine Tug & Barge v. Alyeska Pipeline.

Pre-scripting certain actions, or deciding to take the actions in advance, tends to make an actor more likely to do a certain action

true. Many of those who have acted heroically have said that they had thought in advance about how they would act in a circumstance and, when the situation arose, merely acted in accordance with the court of action they had scripted

If someone does not become aware of an injury caused via the negligence of another for more than two years after the negligent act of another, their claim is not waived under the statute of limitations in most states

true. Most states embrace a doctrine of tolling statute of limitations until the person becomes aware of their injury, within certain limitations.

Under § 402A of the UCC, a strict liability claim will not be supported if the suit arises simply because the product fails to perform its ordinary purpose.

true. Strict liability claims under § 402A of the UCC only covers a defective product if it is "unreasonably dangerous."

Being overconfident increases the likelihood of breaching business ethics

true. Studies indicate that overconfident executives with unrealistic beliefs about their future performance are more likely to commit financial reporting fraud than other executives

If a plaintiff presents enough evidence to create a "genuine issue of material fact" following discovery, a judge should not grant summary judgment against that party

true. Summary judgment can only be granted against a plaintiff when the defendant successfully shows that there is no genuine issue of material fact, that is, that there is no dispute regarding evidence that may allow for the possibility of the plaintiff to win the suit on that particular claim

Two international parties can agree for their contract for the sale of goods to be ruled by a body of law other than the CISG

true. The CISG allows for parties to choose to allow all, part, or none of it to govern their agreements.

The Privileges and Immunities Clause applies only to individuals and not to corporations

true. The P&I Clause is one of the few constitutional protections that applies only to individuals and not to corporations.

Many state powers are derived from police powers

true. The ability to regulate morality, police the population, restrict motor vehicular use, and many other state powers are derived from police powers

An agent's capacity is usually immaterial and will not prevent an agency relationship from being formed.

true. The agent's capacity is usually immaterial, unlike the capacity of the principal. This is because the contract is made on behalf of the principal. The agent is not a party to the contract and therefore does not need capacity

Federal Preemption can apply to conflicts that don't involve the Commerce Clause.

true. The concept of federal preemption is a general principle of constitutional law that applies to any state-federal conflict. The doctrine of preemption is relevant regardless of whether particular federal power comes from the Commerce Clause or from other provision of the Constitution

The Takings Clause can be applied to allow for the government to take trade secret information from corporations.

true. The concept of property is very broad under the Takings Clause. It includes any tangible property and intangible property rights such as those that exist in a company's trade secret information

For the doctrine of discrimination against interstate commerce to apply, the discrimination does not need to be explicit.

true. The discrimination can be implied.

Employees must request leave in order for the FMLA's requirement to come into effect.

true. The employer need not suggest the possibility of FMLA leave to an employee.

Many states have created common law exceptions to the common law doctrine of employment at will.

true. The most notable of these exceptions can be grouped together under the heading of "public policy." Most commonly, courts provide remedies to individuals who are terminated because they refuse to follow instructions to violate the law

The rules of evidence apply even if there is no jury.

true. The rules of evidence apply whether the judge or the jury is the fact finder in a given case.

Behavioral ethics demonstrates that people can think of themselves as good people and still often act dishonestly.

true. The two major facts demonstrated by behavioral ethics research are that people tend to simultaneously think of themselves as good people and often act dishonestly.

In order to prove a claim of negligence, the plaintiff must establish: (1) that the defendant owed the plaintiff a duty of care, (2) that the defendant breached that duty of due care, (3) that the defendant's breach proximately caused the injury, and (4) that the plaintiff suffered injury.

true. These are the four basic elements required to state a claim for negligence.

Patent "trolls" often do not actually use or commercialize their invention beyond actually filing the patent

true. They often buy up other patent rights, choose not to use them, and then demand fees when other patents may infringe them

In order to realize short-term goals, individuals will often not adequately take long-term legal implications into consideration

true. This fact is called a time-delay trap. Because short-term outcomes are considered to be more tangible, the long-term considerations will tend to be ignored in some circumstances

One of the main justifications for the doctrine of respondeat superior is that the superior is generally more able to pay for the damages than the subordinate.

true. This is because the superior is able to justify the expense as a business cost, which is thus reflected in the price of the product and spread over that segment of the population which the product benefits.

A company can be charged with copyright infringement for simply providing the means to the actual infringer to commit the infringement

true. This is called secondary infringement

Parties to a contract may generally transfer their rights in that contract to a third party.

true. This is generally allowed.

Most contracts which a minor enters are voidable at the minor's option

true. To avoid a contract, a minor need not prove that the contract is harmful or unwise, or that they were taken advantage of. They only need to indicate to the other party his or her intention to not be bound by it. There are several exceptions, however.

There is a correlation between properly treating employees and fostering ethical values that will result in rule following.

true. Tom R. Tyler's studies show that there is a positive correlation between properly treating employees and fostering ethical values that will result in rule following.

Packaging and nonfunctional product design can be protected under the same principle as trademarks.

true. Trademark law also protects "trade dress"- very distinctive packaging or nonfunctional product design if it serves the same purpose as a trademark. Trade names and service marks are also protected in similar fashion

Individuals are more likely to act ethically or whistle blow if it is clearly in their job description

true. Trevino and Nelson point out that employees enter work organizations in a state of role readiness. If this includes acting ethically, they will be more likely to work in this way.

A patent protects an inventor patentee for 20-years by giving them exclusive rights to make, use, or sell the patented information

true. Under both former patent acts and the AIA, an inventor patentee is protected for 20 years from the date of filing by giving them exclusive rights to make, use, or sell the patented information.

There is a statute that prohibits registering, in bad faith, an Internet domain name similar or that are the same as someone else's protected trademarks.

true. Under the Anti-cybersquatting Consumer Protection Act, it is illegal to register an Internet domain name (1) that is the same as or confusingly similar to someone else's protected trademark, (2) where there is a bad faith intent to commercially exploit the trademark, and (3) the likely effect is to either cause confusions, or, if the mark is famous, to cause dilution

Corporate Officers can sometimes be held liable for the criminal acts of their employees, even if the officer had no knowledge of the employee's acts

true. Under the Responsible Corporate Officer Doctrine, corporate officers can sometimes be held liable for the criminal acts of their employees, even if the officer had no knowledge of the employee's acts. Fortunately, this is rare.

The government can legally force you to sell your property to them

true. Under the Takings Clause of the Fifth Amendment, which has been incorporated to apply to state and local governments, the power of eminent domain may be exercised by governments to take land "for public use with just compensation."

In order to create an option contract under the common law, the offeree must give the offeror some form of consideration in order for the offeror's promise to keep the offer open

true. Under the common law, in order to create an option contract, the offeree must give the offeror some form of consideration in order for the offeror's promise to keep the offer open

The implied warranty of merchantability requires only that the goods are of average or medium grade.

true. Under the implied warranty of merchantability, there is no guarantee that goods will be of the highest quality available; they are required to be only of average or medium grade, in addition to being adequately packaged and labeled.

An acceptance is generally effective as soon as it is sent, if the medium chosen is reasonable.

true. Under the mailbox rule, if an acceptance is en route then it is considered binding unless stated otherwise in the offer

A modification, under the UCC, must be in writing if it causes the entirety of the contract, as modified, to be required to be in writing under the UCC

true. Under § 2-209(2), a modification must be in writing if the whole contract, as modified, is required to be in writing under the UCC statute of frauds

Crops currently growing on property are presumed to be part of a contract for the sale of land.

true. Unless otherwise stated, the sale of land consists of the earth's surface, vegetation, buildings, and other structure permanently attached to the soil. This included growing crops.

If there is a partially disclosed principal, that is, the third party knows that the agent is working on behalf of a principal, but is unaware of the identity of the principal, the agent and the principal are both liable to the principal.

true. Unless the agent and the third party agree otherwise, in the case of a partially undisclosed principal, both the agent and the principal are potentially liable to the third party.

Utilitarianism argues that there are no specific moral rules that can be applied to all human behavior; instead, an act is morally good if it advances the most good for the greatest number of individuals.

true. Utilitarianism argues that an act is never inherently morally good or evil; acts are only morally good if, in the given situation, it will promote the most good possible for the most people

The metaphor of the ledger is a rationalization technique that employees often use to say "I worked so hard" or "I contributed so much" or "I am so underpaid" that they can justify in their own minds doing something unethical (such as padding their expense account) to even out the ledger.

true. With metaphor of the ledger, the actors rationalize that they are entitled to indulge in deviant behaviors because of their accrued credits in their job

Compensatory damages

try to make up for harm actually done

When is consent not considered real?

under fraud, innocent misrepresentation, mistake, duress, undue influence, or home solicitation

Contributory negligence is considered...

unfair to plaintiffs *both sides at fault = contributory

What is a contract in restraint of trade?

unreasonably restrain trade or competition in interstate commerce.

Unilateral contract =

unusual, person makes proposal if person promises to do something. have to actually do something. can be accepted only by the performance of a particular act. Lost dog sign; contract accepted if you find the lost dog

Minors who want their money back - general rule:

usually the rule is minor gets their money back however, if they use fake ID or misrepresent themselves they cant

What is trade dress? When must secondary meaning be proven?

very distinctive packaging or nonfunctional product design that serves the same purpose as a trademark. Includes distinctive design of a restaurant's exterior and interior décor if they can prove that the design has gained 'secondary meaning'. Secondary meaning does not have to be proved for packaging.

Agreements that call for illegal activities are almost always

void or unenforceable

What is a guilty act, or actus reus?

voluntary and generally must be an act of commission rather than more omission

What are some examples of contracts contrary to statute?

wagering agreements, usury, and some licensing agreements

What is an unenforcable contract? Give an example.

was valid at the time it was made but was subsequently rendered unenforceable because of the application of some special rule of law. Ex. People discharged in bankruptcy

How is circumstantial context used in statutory interpretation?

what were the conditions or social problem that led to the formation of the statute? How can we help the statute achieve those aims?

Negligence Torts

when a defendant has carelessly caused harm to a plaintiff.

Under the Americans with Disabilities Act,...

when a worker has an "impairment that substantially limits a major life activity," employers must make reasonable accommodations.

Revoked;

when an offeror takes it back. Normally an offeror can revoke an offer up until the instant it is accepted. But if an offeree buys an option to keep offers open for a specific length of time, an offer can be made temporarily irrevocable.

When is a party not able to collect from a quasi-contract?

when negligence is involved, if an express contract already covers the situation

What is an Implied repeal?

when some provision of a statute was implicitly repealed by later action of the same legislative body

What is a settlement of debt?

when the creditor, either on his or her own initiative or that of the debtor, promises to release the debtor of all further liability if the debtor pays a specified sum of money

Rejected:

when the offerees communicate that they do not want to accept an offer

What is procedural unconscionability?

when there is a lack of meaningful choice on the part of one of the parties

What is the open Time provision?

where a contract calls for some type of action by the seller (such as shipment or delivery) but does not specify the time for such action, a court may infer a "reasonable time" for performance.

What is the place of citizenship for a corporation?

where it was incorporated or the location of its principal place of business or headquarters.

Why do delegated powers exist?

where it would be unfeasible for them to exist in another capacity (post office)

The virtue ethics approach:

which comes from Aristotle and other Greeks who thought that if people focused on cultivating the characteristics they know all people should have (honesty, reliability, sincerity), they will tend to act ethically.

What is revocation? When is an offer allowed to be revoked? When is a revocation effective?

withdrawal of the offer by the offeror. Effective only when it has been communicated to the offeree. An offer can be revoked at any time unless it is an option contract or a firm offer.

How quickly must a copyright be filed after publication?

within three months after publication in order for the copyright owner to be able to receive so-called "statutory damages" in an infringement lawsuit

Tennessee Valley Authority v. Hill - outcome

wording of the act: "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or result in the destruction or modification of habitat of such species ..." The language of the act admits of no exception for 'nearly complete projects' Congress viewed the value of endangered species to be "incalculable."

What is a fanciful/arbitrary trademark? How protectable is it? Give an example.

words coined specifically for trademark. Usually seen as inherently distinctive. Ex. Apple, Kodak

When must a modification contract be in writing?

writing if the original agreement had provided that it could be modified only by a writing, or the whole contract, as modified, is required to be in writing under the UCC statute of frauds

When is a written contract required under CISG?

written documentation is not required so long as other evidence proves the existence and terms of the contract

What is an interrogatory? Why is it used?

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.

Requests for productions of documents

written request for the other party to provide documents relevant to the case

Tort

wrongful conduct for which civil liability can be imposed

Soldano v. O'Daniels is an example of ...

wrongful death action - tort of negligence

Are e-signatures valid?

yes

Is the attorney allowed to ask leading questions in the cross-examination?

yes

How do you get a case to the supreme court? How many cases does the supreme court hear ever year?

you must petition a writ of certiorari. Hears only about 85 annually

Due process

you will not be deprived of "life, liberty, or property without due process of law."

Flagellio v. Pennsylvania Hospital - arguments

• Hospital argued they should not be tried because on economic grounds alone, the imposition of liability on charitable institutions would be financially ruinous to them. The court rejected this argument, noting first that, as a general rule, a defendant is never permitted to escape liability solely on the ground it would be financially burdensome.