LEGL 2700 FINAL EXAM

Juries

fact finding body petit jury: the trial jury that returns a verdict in both situations decisions usually must be unanimous historically 12 people

Regulation of Foreign Commerce

federal power is total -- extends to all aspects of foreign trade a state may regulate activities that relate to foreign commerce if such activities are conducted entirely within the state's boundaries

Seperation of Powers

federalism each level of government has a separate and distinct role to play

Criminal Law ch. 13

felonies, misdemeanors, indictment, information

Complaint

filed by the plaintiff -- a pleading contains allegations and a statement of request of the relief sought

Lost Items

finder of lost items becomes owner by reducing it to possession and following the statutory procedure turn item to police to advertise in news distinguish between "lost" and "mislaid" -- owner will know where to come back for mislaid things

Defenses to Enforcement of Contracts

fraud, mistake, duress or undue influence

Arbitrators

generally chosen by disputing parties expertise number chosen -- given a list to choose from, but not limited to the list; each party chooses 1 and the 2 chosen choose a third; number is based on the agreement of the parties authority over certain matters -- topic of controversy

Copyrights

gives those who have this property a monopoly over the right to exclude others from copying and marketing for a limited period of time original expression rather than an invention work must be: original, fixed in some tangible medium, show some creative expression runs for author's lifetime plus 70 years for an individual; 95 years from publication; 120 years from creation for a work by a company

Adverse Possession

gives you ownership to land under state statute when possession is as follows: open and notorious, actual and exclusive, continuous, wrongful, for a prescribed period of time (10-20 years)

Information

government files a charge in misdemeanor cases

Ethics and Government

government regulates business when there are ethical failures companies have incentive to be ethical self-regulation

Probable Cause

grand jury must find that a crime has been committed and that the evidence is sufficient to warrant the accused's standing trial

Life Estate

grants an ownership in land for the lifetime of a specified person

Fifth Amendment

protects a person from being a witness against himself Takings Clause

Constitutional Issues of 4th Amendment

protects persons illegal searches and seizures requires police to obtain a court order or search warrant -police must offer evidence that the warrant will assist the investigation police are allowed to search that person arrested and the immediate area around them for weapons

Amendments and Basic Protections

provide protections to private individuals from federal power relative, not absolute -- limitations permissible where there is a competing public policy removes rights from the political process

Reasons of Agencies

providing specificity, providing expertise, providing protection, providing regulation, providing services

Misdemeanors

punishable by a fine or jail sentence of less than 1 year

Felonies

punishable by fine or imprisonment for 1 year or more

Beneficiaries

recognized as having enforceable rights created for them by a contract even though they are not a party and have not been given consideration can sue if parties to the contract intended to benefit that person

Complete Performance

recognizes that a contracting party has fulfilled every duty required by the contract payment of money may sue to enforce this right

Trade Dress

refers to a color or shape associated with a product or service ex: red color scheme of coca-cola; packaging shapes

Capacity

refers to a person's ability to be bound by a contract

Divisibility

refers to how property permits resources to be broken into parts and used in many ways while the owner still retains a property interest in each party

Capital Formation

refers to that quality of resources that produces new or different resources

Corporate Governance

refers to the legal rules that structure, empower, and regulate the agents of corporations and define the relationships to the owners protect property interests that the owners have in corporations need for this because of economic collapse in 2008

Sherman Act section 2

regulates monopoly

Commerce Clause

regulation of foreign commerce interstate commerce contract clause

Liberty and Rights

natural law type of thinking and historically connected to the legal concept of private property

Acceptance of Offer

necessary to create a valid and enforceable offer bilateral -- promise unilateral -- performance silence is not an acceptance

Plant Patent

new variety of plant that can be reproduced asexually 20 years from filing date

Utility Patent

new, non-obvious, useful processes, machines, composition of matter or improvements thereof 20 years from filing date

Design Patent

new, original, and ornamental design for an article of manufacture 14 years from issue date

Quasi Contracts

no actual or even implied agreement one party is unjustly enriched at the expense of the other ex: overpayment

Peremptory Challenges

no cause or reason need to be given to excuse a prospective juror

Absolute

no limitations or conditions attached

Private Securities Litigation Reform Act

no private actions against third parties higher standard for plaintiffs limits on damages and attorneys fees

5th Amendment

normally 23 citizens who lives within the jurisdiction of the court that would try one accused of a crime at least 16 must be present for grand jury to hear evidence and vote on cases indictment

Fair Use

not an infringement for criticism, comment, news reporting, teaching, scholarship, research to determine, court considers: purpose and character of use, nature of copyrighted material, amount used, effect of use on market for work Parodies are okay

Statutory Award

not necessarily binding appeals may be possible

Summons

notice to appear in court mailed to them, service of process

Patentable Subject Matter

novel, non-obvious, have utility NOT: a natural phenomena, mathematical formula

Execution

occurs when a court official seizes property of the debtor, sells it at a public auction, and applies the proceeds to creditor's claim

Waiver

occurs when a party intentionally relinquishes a right to enforce the contract occurs after a contracting party fails to perform

Civil Law

relies more on legislation than judicial decisions for law similar to common in that courts decide the facts in a disputed case BUT these courts do not necessarily follow precedents judges don't play as large of a role

Standing to Sue

plaintiff must establish that he or she is entities to have the court died the dispute first, plaintiff must allege that the litigation involves a case or a controversy second, plaintiff must allege a personal stake in the resolution

Continuous

possession must not be interrupted

Open and Notorious

possessor must occupy the land in such a way as to put the true owner of the land on notice

Personal Jurisdiction

power over the parties to the case obtained when the plaintiff files the suit

Lawyers

present evidence, points of law, and arguments that are weighed by juries and judges practice of law should be means to promote justice counselor, advocate, public speaker

Anti-Deficiency Judgment Statutes

prevent mortgagees from obtaining anything else from mortgagors once the land has been foreclosed and auctioned

Ethics

principles of right conduct

Indefinite Duration

rent payable at periodic intervals or "at will" -- for as long as both shall agree

Fee Simple Ownership

represents the maximum estate allowed under law, the owner having the fullest legal rights, and powers to possess, use, and transfer the land

Write of Certiorari

request by the losing party in a court of appeals for permission to file an appeal original jurisdiction over cases in which states are involved or ambassadors granted if 4 out of 9 justices vote to take the case

Establishment Clause

respecting an establishment of religion

Sarbanes-Oxley Act

revitalization of SEC accounting reforms corporate governance financial statements and controls whistleblower protection

Termination of Offer

revocation (retracting offer) rejection counteroffer lapse of time

Consumer Rights of Fair Credit Reporting Act

right to be told the name of the agency making the report right to require the agency making the report right to correct information or provide explanation

Patent

right to exclude others form making, using, selling, or importing a covered invention

Constitutional Issues of 6th Amendment

rights in a criminal case protections give you the right to: 1. speedy and public trial 2. a trial by jury 3. be informed of the charges against you 4. confront you accuser 5. subpoena witnesses in your favor 6. have the assistance of an attorney

Duration

rule against perpetuates: limits all exercise of property over resources to a duration of "lives in being plus 21 years"

Functions of Agencies

rule making, adjudicating, advising, investigating

Divestment

selling off assets to address the agencies' concerns and permit the merger to go forward

Long Arm Statutes

service of process beyond the state's boundaries allows court to obtain jurisdiction if the defendant: 1. has committed a tort within the state 2. owns property within the state that is the subject matter of the lawsuit 3. has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state

Due Process

procedural -- notice and opportunity to contest substantive -- incorporation doctrine and protection of fundamental rights equal protection -- where a law creates classifications (reasonable vs. suspect)

Request for Production of Documents

production of specific documents that are important to the lawsuit's outcome

Free Exercise Clause

prohibiting the free exercise thereof guarantee freedom of religion though separation of church and state ex: forced to work on Sunday

The Sherman Act

prohibits contracts, combinations, and conspiracies in restraint of trade

Warranty Deed

promises grantee that the grantor has good ownership and the full power to convey it

Incentive

promoted by property

Exclusionary Right

property included an ownership of individual constitutional and human rights in ourselves that excludes the state from interfering with these rights (John Locke)

Title and Property Registration

someone who owns something has title to it title must be represented by physical document deed: the document of title that transfers ownership of land

Accession

something added airplane example John Locke -- if people own themselves and their work efforts and transform something previously unowned into something new by their work, they also own the new thing

Special Warranty Deed

specifies that certain legal claims against the land exist, but guarantee that no other claims exist

Judicial Review of Agency Decisions

standing to sue review of rule making (definite and limited)

Section 10b

states that it is unlawful to use interstate commerce or any national security exchange to defraud any person in connection with purchase or sale of a security

Automatic Termination of Offer

subject matter jurisdiction incapacity of offeror change in law

Appellee

successful party in the trial court

Trial Courts

superior, circuit, and district courts file complaint, describe parties, facts arise, authority to decide case, relief requested from the court

Private Property

system of law under which the state recognizes and enforces an individual's rights to acquire, possess, use, and transfer scarce resources voluntary exchange

Attachment

takes place when (1) a secured party has given value, (2) the debtor owns the collateral, and (3) a security agreement is given must be in writing, signed by debtor, and contain reasonable description of the collateral

Implied-in-fact Contracts

terms are implied based on the conduct of the parties

Estate

the bundle of rights and powers of land ownership

Morals

the collection of values that guides human behavior

Positive Law

the commands of the state backed by force and punishment Jeremy Bentham consequentialism

Foreclosure

the creditor must go through the court system to ensure that procedures are properly followed before debtors lose their homes and land court will order the land sold to satisfy the debt owed (auction)

Rule of First Possession

the first person to reduce previously unowned things to possession becomes their owner abandonment -- measure of intent

False Imprisonment

the intentional unjustified confinement of a non consenting person malicious prosecution: false arrest

Pleadings

the legal documents that are filed with a court to begin the litigation process

Consideration

the legal mechanism for evaluating the existence of this incentive an incentive or inducement for a party's promise bilateral -- promise + promise unilateral -- promise + performance forms: money, option, receipt of a legal benefit, promise that is not an obligation, promise to refrain

Property

the legal right to exclude others from resources that are originally possessed or are acquired without force, theft, or fraud absolute, but not infinite boundaries can be ambiguous

Land Sales Contract

the owner of land sells it by contract subject to the condition that the seller retains title to the land until the buyer pays the purchase price

Appellant

the party appealing

Plaintiff

the party who files a civil action

Defendant

the party who is sued

Assault

the placing of another in immediate apprehension for his or her physical safety includes expectation that one is about to be physically injured

Wrongful

the possessor must not have the owner's permission to be on the land (under lease)

Actual and Exclusive

the possessor must physically occupy the land, however, the building of a fence around the land or construction of a building on it constitutes physical occupation

Subject Matter Jurisdiction

the power over the issues involved in the case

Mediation

the process by which a third party attempts to assist disputing parties in resolving their differences mediatory cannot impose a binding solution voluntary choice court ordered disputing parties retain control over when to settle and when to continue disputing

Submission

the process of beginning an arbitration proceeding

Extradition

the process of requesting and transporting the prisoner from one state to another

Litigation

the process of taking a legal action

Leasehold Estate

the property right granted to tenants by a landlord -tenants cannot "waste" land (do something to reduce its value) -definite duration of time

Defamation

the publication of untrue statements about another that holds up that individual's character or reputation to contempt or ridicule

Second Amendment

the right to possess guns not limited by introductory phrase "militia" Supreme Court majority decision affirms the right to possess guns in one's home and have them ready for self defense

Contract

the rules under which people exchange resources in a property system contract rules make agreements to exchange resources between owners legally binding and enforceable suing and lawsuits

Full-line Forcing

the seller compels the buyer or lessee to take a complete product like from the seller; buyer cannot purchase only one product of the line

Conversion

the wrongful exercise of power and control over the personal resources that belong to another failing to return something at a designated time, delivering something to the wrong party, destruction of what belongs to another

Tangible Property

things one can touch contract or gift for intentional transfer

Proximate Cause

those engaged in activity are laxly liable only for the foreseeable risk that they cause Direct cause Palsgraff example

Presumption of Innocence

to be presumed innocent until found guilty by a petit jury

Trespass

to enter another's land without consent or to remain there after being asked to leave variation: when something is placed on another's land without consent

Law Hierarchy

US Constitution and Amendments statutes of Congress federal administration regulation state constitutions state statutes state administration regulation local ordinances case law

Deeds of Trust

a borrower signs a note, which shows the borrowers debt to the lender, and then signs a deed of trust, which grants the leader a security interest in the building and land put up to secure the loan

Corporation

a business chartered by the state to do business as a legal person in a certain form of organization

Requirements Contract

a buyer agrees to purchase all of its need of a given contract from the seller during a certain period of time

Patent Trolls

a firm or individual that produces no products and owns patents only to obtain licensing fees from other firms

Trademark

a form of intellectual property registered though the PTO forms: words, pictures, designs, logos value: distinguish the reputation and goodwill of a particular business from all other businesses distinctiveness

Service Mark

a mark associated with a service

Collective Mark

a mark representing membership in a certain organization or association ex: NFL logo

Certification Mark

a mark used by someone other than the owner to certify the quality, point of origin, or other characteristics of goods or services

Commercial Impracticability

a party to a sale of goods contact receives discharge from performance

Breach of Contract

a party who does not live up to the obligation of contractual performance

Tippee

a person who learns of non-public information from an insider -temporary insider

Security Interest

a property interest created by agreement or by operation of law over asset to secure the performance of an obligation, usually the payment of a debt

Vertical Restraints

a restrictive agreement between parties in the supply or distribution chain

Purchase Money Security Interest

a security interest that secures the purchase price of foods bought for personal or household use

Class Action Suits

a suit in which one or more plaintiffs file suit on their own behalf and on herald of all other persons who may have a similar claim discouraged at the federal level popular because they often involve matters in which no one member of the class would have a sufficient financial interest to warrant litigation

Novations

a three or more party contract wherein the original contracting parties agree to relieve the obligor from liability by substituting an assignee in place of this party

Assignments

a transfer of rights under contract assignor -- assigns rights to third party assignee -- receives rights

Tarnishment

a type of trademark dilution that occurs when a mark's reputation is harmed by another's use of the same mark in a different context ex: negative impression about a famous company

Blurring

a type of trademark dilution that occurs when the distinctiveness of a mark is reduced by another's use of the same mark in a different context ex: Google lawn service

Answer

a written pleading in which the defendant will either admit or deny each allegation of the plaintiff's complaint and may contain affirmative defenses that will defeat the plaintiff's claim may contain causes of action (counterclaim)

Mirror Image Rule

acceptance must exactly match the offer

Formalism

affirms an absolute morality a particular act in itself is right or wrong duty - moral obligation Immanuel Kant - categorical imperative: you have a moral duty to act in the way you believe everyone should act

Reply

after the answer is received, the plaintiff files this that admits or denies each allegation of the defendant's counterclaims

Pre-merger Notification

agencies have 30 days to review approve/silence seek an injunction to prevent if it violates the Clayton Act "second request"

Horizontal Restraints

agreements made between companies

State Law

all federal law prevails over state law hierarchy of law sources: state constitution, statutes or acts, regulatory law, and county/city ordinances

Nolo Contender

allows sentencing just as if the defendant pleaded guilty/found guilty avoiding costs of the trial and avoiding effect of guilty plea

Right of Redemption

allows the mortgagor to get back land upon payment of the full amount of the debt, including all interest and cost up to sale, sometimes 6-12 moths after

The Constitution

amendments to follow in litigation

Market Extension Merger

an acquisition in which the acquiring company extends its markets product extension or geographic extension

Horizontal Price Fixing

an agreement between competitors to fix prices US vs. Apple Inc.

Bilateral Contract

an agreement containing mutual promises

Unilateral Contract

an agreement with only one promise and only one party is committed to perform ex: "if you sell 100 units this year, i will pay you a bonus of $1000"

Battery

an illegal touching of another done without justification or consent Harper vs. Winston County case

Fraud

an intentional misrepresentation of a material fact that is justifiable relied upon by someone to his or her injury

Security

an investment in which the investor does not participate in management

Injunction

an oder by a judge either to do something or to refrain from doing something

Trade Secrets

any form of knowledge or information that has economic value form not being generally known to others, or readily ascertainable by proper means and has been the subject of reasonable effort by the answer to maintain secrecy establish that a trade secret exists demonstrate misappropriation Ex: formulas, plans, reports, manuals, research, knowledge of customers and suppliers

Federal Law

any law that conflicts with the Constitution is said to be void and has no legal effect legislation, also called "acts" or "suits"

"Resources"

anything that someone may need or want ex: land, widgets, and other physical things

Appellate Courts

appeal: the right to review the case 1 or 2 per state writ of certiorari: request a second review

Mortgage

borrow money from a bank or financial institution and in return give that creditor a security interest on the home and the land associated with it

Appellate Procedures

brief oral argument

Vertical Merger

brings together one company that is the customer of the other in one of the line of commerce in which the other is the supplier

Intentional Torts

deliberate actions that cause injury including where result is substantially likely from action

Mailbox Rule

deposited acceptance rule binding

Due Care

derives from society's expectations about how fair and reasonable actions are used often with negligence cases

Administrative Agencies

describes the boards, bureaus, commissions, and organizations that make up the governmental bureaucracy

Discovery

designed to ensure that the results are based on merits of the controversy and not on the ability, skill, or cunning of counsel designed to ensure that each side is fully aware of all the facts involved in the case and of the intentions of the parties

Release

exists when a party announces the other party does not have to perform as promised occurs before contracting party fails to perform

Good Faith

"honesty in intent" uniform commercial code - all sales must be carried out in good faith

Res Judicata

"the thing has been decided" final decision is conclusive on all issues between parties prevents successive suits

Jumpstart Our Business Startups

(JOBS) ease advertising restrictions for some private offerings equity crowdfunding

Pretrial Procedures

1. plaintiff files complaint 2. complaints and summons served on defendant 3. defendant files motion or answer with possible counterclaim and defense 4. court rules on motions 5. plaintiff files a reply to answer 6. attorneys conduct discovery procedures 7. parties may file motions for summary judgement or judgement on pleadings 8. court conducts pretrial conference

Burden of Proof

1. responsibility that a person has to come forward with evidence on a particular issue 2. the responsibility a person has to be persuasive as to a specific fact

Property Law guarantees:

1. that a borrower's house is an identifiable piece of land recognized by the state 2. that the state recognizes a borrower's claim to the house 3. that the state permits lenders to enforce the mortgage agreement through the courts and sell a borrower's house to satisfy the loan if the borrower fails to repay it

Federal Appellate Courts

12 US Courts of Appeal plus a special court of appeals for the Federal Circuit as intermediate appellate courts

Securities Litigation Uniform Standards Act

1998 same standards for state courts

Mandatory Arbitration

when a statute or court requires parties to arbitrate

Voluntary Arbitration

when disputing parties agree to submission

Counterclaim

when the defendant wants to sue the plaintiff

Reversion

when the land reverts to the original grantor

Supremacy Clause

where a state law interferes with the purpose of a federal law -- state law is deemed invalid

Negligence

where defendant has a duty to act reasonably but instead acts carelessly and causes injury to plaintiff

Condition Precedent

where something must take place in the future, before a party has a duty to perform

Punitive Damages

willful and wanton -- extremely unreasonable behavior defendant's motive must be malicious monetary damages in excess of a compensatory award

Basic Concepts of Criminal Law

willfully and knowingly "good faith" is a common argument knowledge can be inferred if the accused deliberately ignored the existence of a fact 3 possible pleas: guilty, not guilty, solo contender

Federal Bankruptcy Law

works to forgive debts and enable debtors to start fresh

Libel

written defamation

"Exclude"

you can have the police or courts keep someone from interfering with what is yours

Registration of a Trademark

-after 6 years, owner must notify PTO that trademark is still in use -renew every 10 years -enjoys a potentially unlimited protection period

Conspiracy

-an agreement to do something unlawful -intent to join a conspiracy - one overt act in furtherance of the conspiracy -act was knowingly committed in furtherance of the conspiracy -not successful

Aiding and Abetting

-an intentional act to assist another in committing a crime -often paired with conspiracy charge

Fair Credit Reporting Act

-applies to anyone who prepares or uses a credit in connection with extending credit, selling insurance, or hiring or firing an employee -investigative consumer reports: 3 days' notice and procedures must be reasonable

Truth-In-Lending Act

-authorized Federal Reserve Board to adopt regulations to assure a meaningful disclosure or credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uniformed use of credit -coverage: lender in in business of extending credit, debtor is a natural person, finance charge may be imposed, credit is obtained primarily for personal, family, household, or agricultural purposes

Obstruction of Justice

-commission of an act with the intent to obstruct the legislative r judicial process -ex: lying, altering documents, destroying documents, intimidating witnesses

The Clayton Act

-created because Sherman Act was not accomplishing intended purpose -prohibits more specific conduct including price discrimination, special arrangements, and mergers

Securities Exchange Act of 1934

-created the SEC -regulates transfers of securities after the initial sale -ensure fair and orderly trading -efficient publication of price information

Liability

-criminal: willful violation of '33 Act or fraud in any offer or sale of securities -civil: misleading registration statements, unregistered prospectus, fraudulent transaction

Securities Act of 1933

-disclosure law with respect to the initial sale of securities to the public -makes it illegal to use the mails or any other interstate communications or transportation securities without disclosing certain financial information to potential investors

Fraud

-generally knowingly and willfully - advancing a scheme to falsify facts or conceal material fact -making materially false statements - making use of a false writing that contains materially false statements -to induce some action or deprive someone of property or services "good fait" is a defense

Registration Statement

-must be filed with SEC before securities can be sold to the public -included a detailed disclosure of financial information about the issuer -stages: pre-filing period, waiting period, post-effective period

Prospectus

-must be provided to purchasers of public securities -contains much of the same financial information as registration statement -idea is to provide sufficient information so an investor can make an intelligent decision

Constitutional Issues of 5th Amendment

-protection against self incrimination -"pleading the fifth" - not saying anything -protects the accused from being compelled to produce real or physical evidence -relates to business if a person is called to testify about a business matter or is served with a subpoena requiring the production of the records -only individuals can be called to testify -only sole proprietorships are protected by the fifth amendment

Equal Credit Opportunity Act

-purpose is to prevent discrimination in credit extension -coverage: any person who, in the ordinary course of business, regularly participates in a credit decision -prohibits discrimination based on race, sex, age, national origin, marital status, or public assistance; inquiries about marital status or plans to have children; refusal to let a married woman open an account separate from her husband -responsibilities: specific reasons must be given for denial of credit; accounts used by spouses must be reports to 3rd parties

Sanctions of Sherman Act

-violations may be subject to criminal fines or imprisonment -violations may be enjoined by the courts -injured parties may collect treble (triple) damages -any property owned in violation may be subject to seizure and forfeiture to US

Steps in a Mediation Process

1. mediator's introduction and explanation of mediation 2. parties opening statements 3. parties exchange (dialogue) 4. brainstorming possible options 5. agreement (written and signed) 6. private sessions or caucuses (occurs when the mediator meets privately with one party without the other)

Compensatory Damages

1. past and future medical expenses 2. past and future economic loss 3. past and future pain and suffering

The Grand Jury

5th amendment probable cause presumption of innocence

Alternative Dispute Resolution Systems

ADR substitution for a litigation precursor to litigation contractually required preserve a business relationship

Brown vs. Entertainment Merchants Association

CA prohibited sales of violent video games to minors CA's argument: violence leads to antisocial behavior in kids Video Game Association argument: video games are protected speech Supreme Court decision: the law imposes a restriction on protected speech

Interstate Commerce

Gibbons vs. Ogden --> concluded that the Commerce Clause prohibits one state from interfering with commerce that crosses state lines broad federal power

Citizens United vs. FEC

MaCain-Feingold Act of 2002: prohibited corporations from making independent expenditures in campaigns a private nonprofit is advertisements were prohibited Supreme Court overruled by citing first amendment

Burden of Proof in civil cases

Preponderance of evidence: used most frequently; requires that a party convince the jury by having evidence with greater weight clear and convincing proof: used in situations where the law requires more than a simple preponderance of evidence, but less than proof beyond reasonable doubt

Real Property

applies ownership to land and interests inland such as mining rights or leases

Federal Arbitration Act

applies to contracts involving interstate commerce orders courts to rigorously enforce arbitration agreements supersedes state laws that require certain matters to be decided by litigation

Personal Property

applies to movable resources, those things that people do not annex to land

How to file for a patent

apply to US patent and trademark office (PTO) explain how to make and use basic invention show why it is different precisely detail the subject matter that is the invention (the claims)

Invasion of Privacy

appropriation of a person's name or likeness for one's own use --- ex: video game and professional athletes invasion of physical solitude --- illegal searches and seizures

Statute of Limitations

argument that a matter of law prevents plaintiff from winning the suit lack of jurisdiction of the court to hear the suit expiration of time limit

Perfection

arises when a security interest has attached and the creditor has taken all the proper steps required by article 9 makes security agreement effective against third parties

Confusion

arises when fungible goods (goods that are identical) are mixed together ex: grain in silo if an honest mistake, owners of originally separate goods now own proportional share boundaries

Reciprocal Dealing

arrangement exists when two parties face each other as both buyer and seller

Vertical Price Fixing

attempts by manufacturers to control the ultimate retail price for their product

Oral Argument

attorneys are given a specified amount of time to explain orally to the court their position in the case court of review can question attorneys

Focus Groups

attorneys assemble a group of citizens and present their evidence and this group then deliberates and makes findings

Rule of Reason

based on the nature or character of the contracts and surrounding circumstances giving rise to the inference or presumption that the contracts were intended to restrain trade and enhance prices

Burden of Proof in criminal cases

beyond reasonable doubt does not require evidence beyond any doubt

Contractual & Voluntary Award

binding and enforceable by courts parties cannot appeal on merits court will only reverse an award in instance or fraud brother clearly inappropriate action by arbitrator

Organization of Agencies

boards or commission usually consist of 5-7 members, 1 appointed as chair

Infliction of Mental Distress

causing mental harm to a person

Ethics and Society

changing normative values economic interdependence news media and the internet

Private Nuisance

character/extent/duration of harm to plaintiff weighed against social utility of defendant's activity an unreasonable use of one's property so as to cause substantial interference with the enjoyment or use of another's land

Diversity of Citizenship

civil case every plaintiff comes from a different state every defendant comes from a different state at least $75,000 at issue

Infringement

civil violation of a trademark

Indictment

commencement by a grand jury for felony cases

Taxation

common good roads, education, law enforcement, judicial system, defense of nation, public assistance of the poor

Classifications of Law

common law vs. civil law public law vs. private law criminal law vs. civil law substantive law vs. procedural law

Damages

compensatory and punitive

Consequentialism

concerned with moral consequences of actions rather than the morality of the actions themselves ex: loss of trust after someone lies focuses on the common good

Freedom of Speech

congress cannot abridge this right except for "fighting words" symbolic speech: conduct or actions does not apply to private action both verbal and written business relevance: commercial speech and political activities as speech obscenity: unprotected speech over-breadth doctrine: legislators have gone too far in seeking to achieve goal

Brief

contain a short description of the case; a factual summary; legal points and authorities; & arguments for reversing or affirming the lower court decision

Offer to Contract

contains a specific promise and a specific demand offeror must intend to make the offer by making a commitment to offer definite terms

Financing Statements

contains names and addresses of the creditor and debtor, a reasonable description of the collateral, and the signature of the debtor

Exclusive Dealing

contract contains a provision that one party or the other will deal only with the other party

Lawful Purpose Contracts

contracts that require commission of crime are void courts will take no action on void contracts contracts in restraint on trade

Defenses to Negligences

contributory negligence: failure to use reasonable care by plaintiff assumption os risk: knowingly and willfully undertaking an activity made dangerous by another

Substantive Law

defines the legal relationship of people with other people or between them and the state

Private Law

covers those legal problems and issues that concern your private resource relationships with other people property law: involves recognition of exclusive right in tangible and intangible resources contract law: covers the rules of how owners transfer resources by exchanging them tort law: establishes rules for compensation when an owner's legal boundaries are wrongfully crossed

Securities and Exchange Commission

created in 1934 that is responsible for administering the federal securities laws

Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010

creation of administrative agencies to ensure that details contained in the legislation would be carried out

Partnership

creation: automatic based on business conduct; modified by agreement continuity: dissolved whenever one partner withdraws control: each partner has equal voice; modified by agreement liability: personal obligation for all debts and liabilities; joint a several liability taxation: all business income subject to personal taxation, divided equally

S Corporation

creation: incorporators apply for state charter with articles of incorporation continuity: perpetual so long as number of shareholders limited control: managed by officers, appointed by directors, who are elected by shareholders liability: shareholder obligations limited to investment, absent other commitments taxation: all business income subject to personal taxation

Corporation

creation: incorporators apply for state charter with articles of incorporation continuity: perpetual, so long as it can conduct business control: managed by officers, appointed by directors, who are elected by shareholders liability: shareholder obligations limited to investment, absent other commitments taxation: corporate income taxed; shareholders taxed only on income distributed

Sole Proprietorship

creation: no formal documentation continuity: so long as proprietor desires, but no transfer to others control: total control by proprietor liability: personal obligation for all debts and liabilities taxation: all business income subject to personal taxation

Limited Liability Company (LLC)

creation: organizers file articles of organization with state official continuity: dissolved when member withdraws, but may be continued by those remaining control: equal management by members unless manager designated liability: members are agents, but liable for investment taxation: all business income subject to personal taxation

Limited Partnership

creation: partnership agreement and certificate filed in public office where business is conducted continuity: dissolved when general partner withdraws control: general partners have total control liability: personal obligation for general partners; limited partners obligated for investment taxation: all business income subject to personal taxation

Mortgagees

creditors/lenders (bank)

Difference between tort and crime

crime requires intent

Procedural Law

deals with method and means by which substantive law is made and administered ex: time allowed for a party to sue

Mortgagors

debtors/borrower

Award

decision after evidence is presented

Award

decision made by arbitrator a court will make every reasonable presumption in favor of the arbitration award and the arbitrator's acts and proceedings

Direct Verdict

defendant can motion requests that the judge direct the jury to bring in a particular verdict if reasonable minds could not differ on the correct outcome of the lawsuit removes jury's discretion

Causation in Fact

defendant must have actually caused the injury carelessness was a substantial, material factor in bringing about injury

Statutory Arbitration

disputes over small amounts certain family law matters

Gift

donor owns something and gives it to donee who becomes the new owner rules of gift: intends to make the gift & delivers the gift by physical transfer to the donee

Constitutional Issues - 5th amendment continued

double jeopardy no person is allowed to be tried twice for the same crime does not prohibit 2 trials if one is federal and one is state

Performance

duty -- legal obligation discharged when party is relieved from all further responsibility of performance

Duty of Care

duty to not injure others by unreasonable conduct when someone is not acting: no duty to take affirmative action Ianelli vs. Burger King example

Jury Selection

either party can challenge or excuse a prospective juror for a specific reason or cause try and prevent bias

Takings Clause

eminent domain exists to limit the exclusive right of property in order to serve the common good by allowing the government to take away property-protected resources from owners - government can take private property for public use upon paying just compensation -ex: if government builds a road through private land

Historical School

emphasizes that contemporary law should focus on legal principles that have withstood the test of time in a nation different nations may have different traditions and laws Friedrich Savigny

Common Law

emphasizes the roles of judges in determining the meanings of laws and how they apply judicial decisions become precedents judges can invalidate legislation

Confidentiality Agreements

employer promises employment, either for a contractual term or "at will" employee promises confidentiality often to continue after employment ends

Legal Realism

enforce, interpret, and apply "law is what officials do about it" ex: speed limit

14th Amendment

equal protection and due process

First Amendment Protections

establishment clause free exercise clause freedom of speech

Actual Injury

example of negligence

Creditor Beneficiary

example: Carl owes Chris money -- Carl does work for Terry and contracts to have Terry to pay Chris -- Chris is creditor beneficiary and can sue Terry

Acquiring of Resources

exchange, possession, confusion, accession, gift, title and property registration

Condition Subsequent

excuses contractual performance if some future event takes place

Federal Courts

have subject matter jurisdiction over questions of federal law, where the US is a party, disputes between states, diversity of citizenship

Arbitration

having a third party decide the merits of the dispute low key trial parties make their case, submitting evidence and legal arguments arbitrator gives binding decision

Territorial Allocations

horizontal: giving each an exclusive territory vertical: one between manufacturer and dealer or distributor

Social Contract Theory

how to construct a just society given the many inequalities of wealth, knowledge, and social status John Rawls everyone is entitled to equal basic rights

Preemption

if federal law preempts a subject, then any state law that attempts to regulate the same activity is unconstitutional under the supremacy clause

Deficiency

if foreclosure and auction do not produce enough money to satisfy the debt owed by the mortgagor, the mortgagee can still sue the debtor for the balance owed

Third Party Defendant

if the defendant alleges that there cannot be complete determination of controversy without another party

Default

if the defendant does not respond in any way, the court orders this and grant the plaintiff the relief sought by the complaint

Remainder

if the land goes to someone other than the grantor

Impossibility

if the subject matter of the contact is destroyed, contract becomes impossible to perform ex: building burns, person performing dies

Constructive Delivery

in a gift, turning over keys to a car or the deed to land

Public Law

includes matters that involve the regulation of society government official represents the people constitutional law: involves interpretation and application of either federal or state constitutions administrative law: covers the legal principles that apply to government agencies criminal law: specifies various offenses against the proper oder of the state

Price Fixing

most common contract in restraint of trade -- an agreement among competitors to charge the same price for their products

Deposition

most expensive and most revealing the lawyer orally asks questions of possible witnesses and an oral response is given recorded by court reporter

Intellectual Property

intangible creations of the intellect designs, inventions, processes, works of art, trademarks, chemical compounds, software code grounded in the idea of incentives

Intangible Property

intellectual property, securities may only include the right to exclude contract for transfer

Law

intended to tell members of a society what they can and cannot do made of of rules and these rules are laid down by the state and backed up by enforcement

Case Law

interpret the relevant constitutional, legislative, and regulatory laws precedents advantages: "stare decisis" - let the prior decision stand disadvantages: huge volume of cases, conflicting precedents, dicta (whatever else the court said), rejection of the precedent, conflicts of law (varying state laws)

Racketeering

investing funds fromm a prohibited activity into an enterprise or participating in such an enterprise Racketeer Influence & Corrupt Organizations Act (RICO)

Criminal Law

involve a representative of government attempting to prove the wrong committed against society involves punishment of wrongdoer

Secured Transactions

involves a creditor who has sold something on credit or made a loan to a debtor who agrees to give the creditor a security interest in a valuable object -- collateral

Garnishment

involves having a portion of the debtor's wages paid to the court pays creditor

Parties Regulated

issuer: the individual or business organization offering security for sale to the public underwriter: anyone who participates in the original distribution of securities by selling securities for issuer controlling person: one who controls or is controlled by the issuer seller: anyone who contracts with a purchaser or who is a motivating influence that causes the purchase transaction to occur

Jury Instructions

judge acquaints jury with the law applicable to the case purpose is to bring the facts and law together in an orderly manner that will result in a decision

Utilitarianism

judges actions by usefulness, by whether they serve to increase the common good

The Court System

judges, juries, lawyers, federal courts, supreme courts

Sociological Law

law can and should change to meet new developments ex: 2nd Amendment was written when a person that was highly trained only had means of a 25lb rifle that could only fire 2 rounds a minute

Natural Law

law contains universal moral principles observable in nature and determined through human reason John Locke formalism

Rule of Law

laws that are made generally and equally applicable apply to all members of society / nobody is above the law

Soning Ordinances

laws that divide counties into use districts designated residential, commercial, or industrial limits use to which land can be put can specify the height, size, number, and location of buildings that can be built on land aesthetic requirements

Interrogatories

least expensive method of discovery present a series of questions to the opposing parties

Why Arbitration?

less expensive privacy experts

Why mediation?

less formal, more flexible cheaper more control non-binding

Types of Motions

motion to compel discovery motion for summary judgement (judge bases decision on pleadings as well as other evidence) -- affidavits (sworn statements) judgement on the pleadings: asks the judge to decide the case based solely on the complaint and the answer

Joint Tenants

must have equal ownership "right of survivorship"

Substantial Performance

less than complete performance work done is sufficient to avoid the claim of a breach partial recovery under contract

Material Breach

level of performance that is below what is reasonable acceptable

Mail & Wire Fraud

mail: use of the US postal service or an interstate carrier to carry out a scheme to defraud wire: use of radio, TV, telephone, internet, or other "wired" form of communication to carry out a scheme to defraud

Economic Espionage Act

makes it a crime to steal trade secrets and provides for fines and up to 10 years of imprisonment for individuals and up to $5 million fine for organizations

Quit-Claim Deed

makes no guarantees other than that the grantor surrenders all claim against the land

Ethics & Law

many ethical values are not enforced by the state and many laws do not address ethical concerns

Defenses to a Trademark

mark is not distinctive and/or has become generic little chance of confusion use is "fair use" - discussion, criticism, or parody of a trademark

Security Markets

markets for stocks and bonds and other ownership interests in business

Defenses to security regulation

materiality, statute of limitations, due diligence

Defeasible

may have a condition attached to its conveyance (transfer)

Civil Law

may include suits for breach of contract or tort cases involves a request for damages or appropriate relief that does not involve punishment of wrongdoer

The Good

moral goals and objectives we choose to pursue

Concurrent Ownership

more than one person can own the same thing -shareholders of a corporation -partners of a partnership -"four unities" - possession, interest, time, title

Contract Formation

offer, acceptance, consideration, capacity, legality

Bribery

offering, receiving, or soliciting something of value for the purpose of influencing the action of an official in discharge of his/her duties Foreign Corrupt Practices Act (FCPA) - makes it a crime for US companies to pay foreign companies to come over and do business

Tying Contract

one in which a product is sold or leased only on the condition that the buyer or lessee purchase a different product or service from the seller

Conglomerate Merger

one in which the businesses involved neither compete nor are related as customer and supplier in any given line of commerce

Testamentary Gift

one that is made through a will ex: death of a donor (testator)

Contract Clause

only applies to states and not federal governments regulates state and local government

Supreme Court

only hear about 1% of appeals usually will only take a case if there is some split among the circuits all federal judges and justices appointed by president and approved by the senate

Per Se Illegality

only proof of the activity is required, and it is not necessary to prove and anticompetitive effect

Other Steps During a Trial

opening statements by attorneys (just facts) plaintiff introduces evidence to establish truth of allegations made in the complaint directed verdict lawyers summarize evidence jury instructions

Slander

oral defamation

Respondent

other party to petitioner

Batson vs. Kentucky

outlawing racial discrimination in jury selection discriminatory motive in making peremptory strikes

Publicly Held business organization

owned by many persons those whose stock is traded on a public exchange

Closely Held business organization

owned by only a few persons

Tenants in Common

owners can own different shares of the resources if one tenant sells, no effect on other tenants

Property

ownership the right to turn to public authorities to help you keep others from interfering with what you own private (own as an individual) common (joint ownership like land)

Express Contracts

parties actually discuss the terms of the agreement

Motions

parties seek a pretrial determination of their rights defendant can file a motion instead of an answer motion to dismiss for failure to state a cause of action

Request for Admission

party can request the other to admit that certain issues presented in the pleadings are no longer in dispute narrows some issues and makes settlement more likely

Petitioner

party initiating the petition

Donee Beneficiary

performance is meant as a gift life insurance

Jurisprudence

philosophies of law natural, positive, historical, sociological, legal realism

Possession

physically holding and controlling it rule of first possession lost items

"Originally Possessed"

what comes from you like work or expressions

Predatory Pricing

when a firm sells at below cost in oder to drive out competition

Insider Trading

trading securities while in possession of information about those securities that is not available to the public

District Courts

trial courts of federal judicial system 1 in every state and DC authority to review lawsuits, receive evidence, evaluate testimonies, impanel juries, and resolve disputes

Judges

trial judges: decide questions of law justices / appellate judges: appeal and give reasons for decisions (precedents) strengths: highly skilled experts, often protected from political pressure, job stability promotes objectivity weaknesses: not always representative of the population, lack of accountability

Defenses to Defamation

truth is absolute statement arose from privileged communications

Tangential Crimes

underlying crimes

Larceny

unlawful taking of personal property with intent to deprive the rightful owner permanently (stealing) business context: misappropriation of funds / embezzlement

Rule 10b-5

unlawful to: employ any device, scheme, or artifice to defraud; make any untrue statements of material fact or omit it; to engage in any act that would operate as fraud

Public Nuisance

use of land that causes damage or inconvenience to the public Huy Fong Foods example with Siracha

Horizontal Merger

usually combines two businesses in the same field or industry and reduces competitors

Deciding the Case

verdict: the jury's decision announced in the court room when the jury's deliberations are complete judge must decide whether to accept the verdict if judge agrees with verdict, a judgement is entered in favor of the party that won the jury verdict party who is dissatisfied may file a pastoral motion

Settlements

voluntary choice by parties least expensive in time, cost, and emotion non-binding

Breach of Duty

was defendant's conduct reasonable? essentially a cost-benefit analysis done after the fact